Citation Nr: A21000155 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 200213-62559 DATE: January 5, 2021 ORDER Entitlement to an initial compensable disability rating for obstructive sleep apnea is denied. FINDING OF FACT 1. The Veteran's sleep apnea has a pre-aggravation baseline level of severity demonstrating persistent daytime hypersomnolence and requiring the use of a continuous positive airway pressure (CPAP) machine (50 percent disabling). 2. The Veteran's post-aggravation sleep apnea requires use of a CPAP machine but does not exhibit chronic respiratory failure with carbon dioxide retention or cor pulmonale, or require tracheostomy. CONCLUSION OF LAW The criteria for entitlement to an initial compensable disability rating for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.310 (b), 4.1, 4.2, 4.3, 4.7, 4.10, 4.97, Diagnostic Code 6847 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from February 1997 to February 2000, and again from February 2003 to January 2004. The rating decision on appeal was issued in December 2019 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the February 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to an initial compensable disability rating for obstructive sleep apnea The Veteran claims entitlement to an initial compensable disability for obstructive sleep apnea. Specifically, the Veteran contends that his obstructive sleep apnea was aggravated beyond its natural progression by his service-connected posttraumatic stress disorder (PTSD) requiring the use of a CPAP machine for breathing assistance during sleep, establishing the criteria for an initial 50 percent disability rating. The Veteran was granted service connection and assigned a noncompensable disability rating for obstructive sleep apnea associated with PTSD, effective August 21, 2017, in a December 2019 rating decision. The Board notes that the Veteran's obstructive sleep apnea is currently rated as noncompensable, pursuant to 38 C.F.R. § 4.97, Diagnostic Code 6847. The Veteran was granted service connection for obstructive sleep apnea based on aggravation of a nonservice-connected disability by his service-connected PTSD. In the December 2019 rating decision, the RO determined the obstructive sleep apnea symptomatology met the criteria for an initial 50 percent rating. The RO assigned a noncompensable disability rating after it ascertained the baseline severity of the Veteran’s obstructive sleep apnea and deducted it from the current level of severity. Pursuant to 38 C.F.R. § 3.310, the assigned disability rating reflects only the extent of aggravation of the Veteran’s obstructive sleep apnea over and above the baseline level of severity and any increase in severity due to the natural progression of his obstructive sleep apnea. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established. This baseline is to be established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b). The rating activity will determine the baseline and current levels of severity under the Rating Schedule and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310 (b). Sleep Apnea Syndromes (Obstructive, Central, Mixed) which are asymptomatic but have documented sleep disorder breathing are to be evaluated as noncompensable. Sleep apnea with persistent daytime hypersomnolence (recurrent episodes of excessive daytime sleepiness) warrants a 30 percent evaluation. Sleep apnea which requires use of breathing assistance device such as a CPAP machine warrants a 50 percent rating. Sleep apnea with chronic respiratory failure with carbon dioxide retention or cor pulmonale, or which requires tracheostomy warrants a 100 percent rating. 38 C.F.R. § 4.97, Diagnostic Code 6847. After review of the record, the Board finds that the medical evidence establishes a pre-aggravation baseline of 50 percent based on sleep apnea which requires use of breathing assistance device such as a CPAP machine warrants a 50 percent rating. The Veteran was initially diagnosed with obstructive sleep apnea following an August 2017 sleep apnea disability benefits questionnaire (DBQ). At examination, the Veteran reported prior sleep disturbance which has increased in severity with PTSD. The August 2017 sleep apnea DBQ noted a diagnosis of obstructive sleep apnea, with persistent daytime hypersomnolence, requiring the use of CPAP machine for breathing assistance during sleep. He did not have chronic respiratory failure with carbon dioxide retention or cor pulmonale, and did not require a tracheostomy. The Veteran’s pre-aggravation sleep apnea manifested in symptoms most accurately described by the rating criteria for a 50 percent disability rating. Subsequently, a June 2018 VA medical opinion concluded that the Veteran’s obstructive sleep apnea was at least as likely as not aggravated by his service-connected PTSD, or medication used to treat his PTSD. A July 2018 VA addendum medical opinion found that the Veteran’s service-connected PTSD, and medication used to treat his PTSD, aggravated his sleep apnea affecting the “[amount] and quality of the sleep the [V]eteran is getting”. An additional August 2018 VA addendum medical opinion noted that the Veteran’s obstructive sleep apnea required the use of a CPAP machine for breathing assistance during sleeping, and that his service-connected PTSD aggravated his sleep apnea by lessening the amount of the Veteran’s sleep even with the use of CPAP machine. The Veteran submitted a statement accompanying his VA Form 10182. He argued that he had PTSD in 2004, and did not have sleep apnea at the time. He stated that then he began to take citalopram and was subsequently diagnosed with sleep apnea. He stated that he did not have sleep apnea prior to onset of PTSD, and therefore the RO should have granted a 50 percent rating. The Veteran’s obstructive sleep apnea has continued to manifest in symptoms most accurately described by the rating criteria for a 50 percent disability rating. Therefore, the baseline severity and current level of severity would both receive the same rating and the current level of severity is deducted. As a result, the appropriate rating is 0 percent, or noncompensable. Additionally, the Board finds that a 100 percent post-aggravation rating is not warranted as there is no evidence that the Veteran’s sleep apnea presents with chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requires tracheostomy. 38 C.F.R. § 4.97, Diagnostic Code 6847. The Board acknowledges the Veteran’s statements that obstructive sleep apnea has worsened over time and did not previously require the use of a CPAP machine until it was aggravated by the medication used to treat his PTSD. The Veteran is competent to report his symptoms of prior sleep disturbance and has presented credible statements in this regard. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds, however, that neither the Veteran’s statements nor medical evidence demonstrates that the Veteran’s obstructive sleep apnea had a pre-aggravation baseline of less than 50 percent or a post-aggravation severity of greater than 50 percent. The Board also acknowledges that the Veteran’s VA treatment and private medical records note complaints of sleep disturbance as early as December 2004. However, these records do not diagnose sleep apnea or address the specific rating criteria necessary to determine a pre-aggravation baseline for obstructive sleep apnea. In determining the actual degree of disability, the August 2018 sleep apnea DBQ findings and VA addendum medical opinions are more probative of the degree of impairment. (Continued on the next page) In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Riordan, 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.