Citation Nr: 25002018 Decision Date: 02/11/25 Archive Date: 02/11/25 DOCKET NO. 230716-362592 DATE: February 11, 2025 SUPPLEMENTAL ORDER A compensable rating for a mild restrictive ventilator defect is denied. Service connection for a sleep disorder is denied. FINDINGS OF FACT 1. The Veteran served on active duty from April 2019 to April 2023, to include service in the Persian Gulf; he has been 100 percent disabled since July 2023 plus in receipt of special monthly compensation (SMC). 2. A respiratory disability, diagnosed as mild restrictive ventilator defect, has been manifested by subjective complaints of shortness of breath; objective evidence includes pulmonary function testing (PFT) results of FVC 77 percent, FEV-1 81 percent, and FVC/FEV-1 88.1 percent. 3. Symptoms of a sleep disorder are not separate and distinct from the already service-connected chronic adjustment disorder. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for a respiratory disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.96, 4.97, Diagnostic Code (DC) 6843 (2024). 2. A sleep disorder was not incurred in service and is not separate and distinct from an already service-connected psychiatric disability. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303 (2024). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This decision has been written under the guidelines of the Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA). In June 2023, the agency of original jurisdiction (AOJ) granted service connection for a respiratory disability and assigned a noncompensable (0 percent) rating but denied service connection for sleep apnea. In July 2023, the Veteran appealed to the Board via a Form 10182 and elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the June 2023 AOJ decision on appeal. 38 C.F.R. § 20.301. Notably, in an August 2023 rating decision, the Veteran was granted service connected for obstructive sleep apnea (OSA), which was combined with the previously service-connected mild restrictive ventilator defect. The decision assigned a 50 percent rating effective June 19, 2023. Despite this award, the claim raised in this appeal for service connection for OSA and a compensable rating for the respiratory disability are not moot as the claims in this appeal may result in an earlier effective date prior to the June 19, 2023, or a higher rating. This decision is being issued this date as a Supplemental Decision to a Board decision dated September 11, 2024, in order to address the issues listed on the Title Page. Increased Rating for a Respiratory Disability Turning to the relevant laws and regulations, disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Historically, the AOJ granted service connection for a respiratory disability in June 2023 and assigned a noncompensable rating effective April 16, 2023, under DC 6843. The Veteran has indicated a higher compensable rating was warranted. In order to warrant a compensable rating, the evidence must show: " A maximum, 100 percent is assigned for PFT test results when forced expiratory volume in one second (FEV-1) is less than 40 percent of predicted value, or; or when there is a ratio of FEV-1 to forced vital capacity (FVC) of less than 40 percent, or; when diffusion capacity of the lung for carbon monoxide by the single breath method (DLCO) is less than 40-percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy. " A 60 percent rating is warranted where the PFT results are FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40- to 55-percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). " A 30 percent rating is assigned if FEV-1 or FEV-1/FVC is 56 to 70 percent of that predicted, or if DLCO (SB) is 56- to 65-percent of that predicted. " A 10 percent rating is assigned when FEV-1 is 71- to 80-percent predicted, or the FEV-1/FVC ratio is71 to 80 percent, or; when DLCO is 66- to 80-percent predicted. Under 38 C.F.R. § 4.96, post-bronchodilator results are to be used when evaluating based on PFT results. However, where the post-bronchodilator results are worse than the pre-bronchodilator results, pre-bronchodilator results must be used for rating purposes. 38 C.F.R. § 4.96(d)(5). Additionally, where there is a disparity between the results of different PFTs to the extent that the level of evaluation would differ depending on which test result is used, the Board must look to the test result that the examiner states most accurately reflect the level of disability. 38 C.F.R. § 4.96(d)(6). Under DC 6843, restrictive lung disorders are evaluated based on PFT results. Here, the post-bronchodilator results for FVC was 77 percent; FEV-1 was 81 percent; and FEV-1/FVC was 88.1 percent. The examiner noted DLCO was not indicated for the Veteran's condition, and the FVC percent test result most accurately reflected the Veteran's level of disability; however, FVC percent is not applicable for evaluating conditions under DC 6843. Instead, FEV-1 percent, FEV-1/FVC ratio, or DLCO are indicated for rating purposes. As previously noted, a 10 percent rating is assigned when the FEV-1 is 71- to 80-percent predicted, or when there is a ratio of FEV-1 to FVC of 71 to 80 percent, or; when DLCO is 66- to 80-percent predicted. Here, under either test results, the medical evidence does not support a 10 percent rating. Turning to the medical evidence, the Veteran underwent a respiratory examination in August 2022 prior to service separation and indicated he experienced nosebleeds and shortness of breath starting in 2019 while stationed in Korea. The examiner noted that the Veteran had diagnosed with a mild restrictive ventilator defect in March 2021. The examiner performed diagnostic testing to include chest X-rays and PFT. The X-rays were negative and the PFT results illustrated only a minor limitation in lung performance. Nevertheless, the examiner confirmed the diagnosis and indicated that the disorder would have some functional impact to include occupations with physically demanding and exertional activity would not be well tolerated. The clinic records were reviewed. The service treatment records (STRs) show that the Veteran had been evaluated for shortness of breath and wheezing in February and March 2021. Diagnostic testing to include X-rays and PFT were unremarkable. Treatment records noted that he had been prescribed an Albuterol inhaler which improved the disorder. Otherwise, the medical records do not reflect a condition more severe than noted in the August 2022 examination. As such, the medical evidence does not support a higher, compensable rating for the period on appeal. Service Connection for a Sleep Disorder Turning to the laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). As to the existence of a disability, the Veteran was service connected for a psychiatric disability, diagnosed as a chronic adjustment disorder with mixed anxiety and depressed mood that had been claimed as sleep disturbances, personality disorder, depression, and anxiety, in the June 2023 rating decision on appeal. Also, an August 2022 examination noted that the Veteran did not have a diagnosis of obstructive sleep apnea (OSA) but instead was diagnosed with hypersomnolence. Regarding the first element of service connection, the weight of the medical evidence shows that a separate sleep disorder has not been diagnosed. While the Veteran has reported impaired sleep to include trouble sleeping, snoring, and excessive daytime sleepiness, these complaints have been associated with the service-connected psychiatric disorder. Symptoms of a sleep disorder attributable to a diagnosis other than the psychiatric disability, such as OSA, were not documented during the appeal period. Absent competent evidence of a currently diagnosed disorder, there is no disability for which service connection can be considered. See Degmetich v. Brown, 104 F.3d 1328, 1333 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Additionally, all symptoms of sleep impairment have been subsumed by the Veteran's service-connected psychiatric disability, and as such, there are no unaccounted-for symptoms of sleep disturbance that cause additional functional impairment such that they could be construed as a distinct disability. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Rather, assigning service connection and rating another sleep disorder could lead to impermissible pyramiding. Therefore, the first element of service connection is not met, and the medical evidence does not support service connection for a separate sleep disorder. The Board has considered the Veteran's lay statements regarding the respiratory disability and sleep disorder. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of these disabilities according to the appropriate diagnostic codes or the etiology of the sleep disorder. Such competent evidence concerning the nature and extent of the Veteran's respiratory disability and sleep disorder have been provided by the medical personnel who have examined him during the current appeal and who have rendered a pertinent opinion in conjunction with the evaluation. The medical findings (as provided in the examination report and other clinical evidence) directly address the criteria under which this disability is evaluated. Moreover, as the examiner has the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinion great probative value. As such, these records are more probative than the Veteran's subjective complaints. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable, and the appeals are denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. J. Ferguson, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.