Citation Nr: 23057119 Decision Date: 10/19/23 Archive Date: 10/19/23 DOCKET NO. 16-19 039 DATE: October 19, 2023 ORDER Entitlement to service connection for sleep apnea is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran's sleep apnea is not causally related to his active military service, including his service in Southwest Asia. 2. The Veteran's service-connected disabilities do not render him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1119, 1120, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310, 3.317, 3.320. 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from March 1984 to March 1988 and from September 1990 to July 1997, with service in the Southwest Asia theater of operations. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2017 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO). This appeal was most recently before the Board in November 2022, at which time it was remanded for additional evidentiary development. As regards the claims on appeal, the RO was to obtain a VA examination addressing whether the Veteran's sleep apnea was an undiagnosed illness, a diagnosable but medically unexplained chronic multi symptom illness of unknown etiology, a diagnosable chronic multi symptom illness of partially understood etiology or pathophysiology, or a disease with a clear and specific etiology. The examiner was also to identify the Veteran's diagnosis; whether that diagnosis has a conclusive, partially understood, or unknown etiology; and whether that diagnosis has a conclusive, partially understood, or unknown pathology. The RO obtained the required examination, and in August 2023 the VA examiner opined that the Veteran's sleep apnea was a diagnosable chronic multi symptom illness with a partially explained etiology. The examiner did not expressly state whether the pathology or pathophysiology of the Veteran's sleep apnea was conclusive, partially understood, or unknown. However, the examiner stated: Obstructive sleep apnea (OSA) is characterized by episodes of complete collapse of the airway or partial collapse with an associated decrease in oxygen saturation or arousal from sleep. Pharyngeal narrowing and closure during sleep is a complex phenomenon, and likely multiple factors play a role in the pathogenesis. Sleep-related reduced ventilatory drive and neuromuscular combined with anatomic risk factors are likely to play a significant role in upper airway obstruction during sleep... The anatomic factors that promote pharyngeal narrowing include large neck circumference, soft tissue, bone, or vessels... Many of these structures can lead to increased surrounding pressure of the upper airway resulting in pharyngeal collapsibility and/or insufficient space to accommodate the airflow in a portion of the upper airway during sleep... In addition, the upper airway muscle tone plays a role as when it decreases, a repetitive total or partial airway collapse results. The most common cause of OSA in adults is obesity, male sex, and advancing age. This detailed description of the physical processes by which obstructive sleep apnea occurs and some of the factors known to play a role in its pathogenesis sufficiently reflects that the pathology of the Veteran's sleep apnea is at least partially understood. Accordingly, the examiner implicitly made the finding required by the November 2022 remand order. Accordingly, the Board finds that there has been substantial compliance with the November 2022 remand directive. See Stegall v. West, 11 Vet. Appl 268, 271 (1998) (holding that when a remand is issued, the Veteran is entitled, as a matter of law, the right to compliance with the remanded order) 1. Entitlement to service connection for sleep apnea The Veteran contends that he is entitled to service connection for sleep apnea on a direct basis. He also asserts in a December 2016 statement that his sleep apnea is a result of environmental exposure during his service in Southwest Asia. The Veteran further contends in his March 2016 claim and his September 2017 Notice of Disagreement that his sleep apnea is caused by his service-connected mood disorder, his service-connected gastroesophageal reflux disease (GERD), medications taken for his service-connected conditions, or some combination of these factors. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1)a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker, 708 F.3d at 1338. Service connection may also be established on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of chronic disability resulting from an undiagnosed illness or medically unexplained chronic multi symptom illness, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). A "qualifying chronic disability" for purposes of 38 U.S.C. § 1117 is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multi symptom illness (MUCMI) that is defined by a cluster of signs or symptoms, or (C), any diagnosed illness that the Secretary determines in regulation prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. 38 U.S.C. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i)(B). An undiagnosed illness requires that the illness, by history, physical examination, and laboratory tests, cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(4). In Stewart v. Wilkie, the Court of Appeals for Veterans Claims (Court) addressed the definition of a MUCMI under 38 C.F.R. § 3.317(a)(2)(ii) and held a diagnosed condition does not constitute a MUCMI, as defined under 38 C.F.R. § 3.317 (a)(2)(ii), when both the etiology and the pathophysiology of the illness are at least partially understood in the context of the claimant's unique circumstances. 30 Vet. App. 383 (2018) (holding VA relied on an inadequate examination when it determined a claimant's asthma was not a MUCMI when an examiner failed to address both the etiology and pathophysiology of the condition in the context of the claimant's unique circumstances). In other words, if either the etiology or the pathophysiology of a diagnosed condition is not at least partially understood, the condition may constitute a MUCMI. Veterans who served in certain locations on or after August 2, 1990, are also presumed exposed to fine particulate matter. 38 C.F.R. § 3.320(a). Certain chronic diseases and rare cancers associated with exposure to fine particulate matter will be service connected, even if there is no evidence of such disease during the period of military service. Id. Additionally, Congress recently passed the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act). That legislation declares that Veterans who served in certain locations on or after August 2, 1990, are presumed exposed to burn pits or other toxins. 38 U.S.C. § 1119(c)(1). Further, the PACT Act provides a presumption of service connection for certain enumerated respiratory conditions. 38 U.S.C. § 1120. Service connection may also be granted on a secondary basis for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Similarly, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, may be service connected on an aggravation basis. See 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay testimony is competent to prove that a claimant exhibited certain lay-observable symptoms and the time that those symptoms appeared. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776, 777-79 (Fed. Cir. 2021). In this case, the Veteran has not established service connection for sleep apnea under any theory of entitlement. Presumptive Service Connection Although the Veteran is considered a Persian Gulf veteran, his sleep apnea does not meet the criteria for presumptive service connection for a Persian Gulf veteran. The Veteran has been diagnosed with sleep apnea since 2011, meaning that he does not have an undiagnosed illness. Sleep apnea is also not a diagnosed illness that the Secretary has determined by regulation warrants presumptive service connection for Persian Gulf veterans. The Veteran's sleep apnea is also not a MUCMI. As noted above, in August 2023 a VA examiner opined that the Veteran's sleep apnea was a diagnosable, chronic multi-symptom illness with a partially explained etiology. The examiner also implicitly opined that the pathophysiology of the Veteran's sleep apnea is at least partially understood. The Board finds this opinion adequate and entitled to significant probative weight. The examiner reviewed the medical evidence of record and offered a detailed rationale, informed by the Veteran's medical history and the medical literature. Conversely, no competent medical source has suggested that the Veteran's sleep apnea reflects a MUCMI. Accordingly, the Veteran's impairment does not meet the criteria for presumptive service connection for Gulf War veterans. The Veteran has also not shown service connection based on fine particulate matter exposure or burn pits and other toxin exposure. The Veteran served in the Southwest Asia theater of operations on or after August 2, 1990. Accordingly, he is a covered veteran, and his exposure to fine particulate matter and burn pits and other toxins is presumed. 38 U.S.C. § 1119; 38 C.F.R. § 3.320(a). However, sleep apnea is not a disease associated with either fine particulate matter exposure or with exposure to burn pits and other toxins. 38 U.S.C. § 1120; 38 C.F.R. § 3.320. Accordingly, presumptive service connection based on such exposure is unwarranted. However, service connection can still be established on a direct basis if there is evidence of a nexus between the Veteran's hypertension and his exposure during service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board addresses this possibility below. Lastly, the Veteran's sleep apnea does not meet the criteria for presumptive service connection based on chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b). Sleep apnea is not one of the chronic diseases listed in 38 C.F.R. § 3.309(a). Accordingly, presumptive service connection based on chronicity and continuity is not warranted. See Walker, 708 F.3d at 1338. Direct Service Connection The Veteran has also not established service connection on a direct basis. The first element of service connection is met, as the Veteran has been diagnosed with sleep apnea since 2011. Turning to the second element, an in-service disease, event, or injury, as a Persian Gulf veteran, the Veteran is presumed to be exposed to environmental hazards, specifically including fine particulate matter and to burn pits and other toxins. Based on this presumed exposure, the second element of direct service connection is met. However, the third element of service connection, a causal relationship or nexus, is not met. The Veteran was not diagnosed with or treated for sleep apnea while in service, and he has reported that his sleep apnea symptoms began in 2010 or 2011 - more than a decade after his military service. Although the Veteran asserts that his sleep apnea was caused by his military service, he does not have any specialized medical training and so is not competent to offer an opinion on the etiology of his condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The August 2023 VA examiner stated that toxic exposure is not a known etiology of sleep apnea and that the Veteran's sleep apnea was more likely due to his sex, age, and body-mass index. The Board finds this opinion adequate, based on its detailed rationale and the examiner's review of the whole file. The opinion is also consistent with the medical evidence. For instance, in July 2009, the Veteran was noted to be "at risk" for obesity-related conditions such as obstructive sleep apnea, based on his weight. Such evidence supports the examiner's conclusion that the subsequent onset of sleep apnea is more likely due to factors such as the Veteran's weight than due to his environmental exposure during the Gulf War. Accordingly, the Board affords the November 2017 VA opinion significant probative weight. Conversely, no competent medical source has opined that there is a nexus between the Veteran's service and his sleep apnea. In the absence of any competent evidence favoring a nexus, the evidence persuasively weighs against finding that the Veteran's sleep apnea is service connected on a direct basis. Secondary Service Connection Lastly, the Veteran has not established service connection on a secondary basis. November 2017, a VA examiner opined after review of the available medical records that the Veteran's sleep apnea was less likely than not proximately due to or the result of either his GERD or his mood disorder. Neither condition, the examiner stated, was specifically known to cause structural sleep apnea or changes in the structure of the upper airway. The examiner further opined that it would be mere speculation to attribute any aggravation of the Veteran's sleep apnea to any of his service-connected disabilities because of the number of medical, mental health, and social comorbidities experienced by the Veteran. The Board finds this opinion adequate and entitled to significant probative weight, as it reflects a thorough review of the medical evidence available to the examiner and is uncontradicted by any competent medical source. The Veteran asserted in his September 2017 Notice of Disagreement that GERD was a risk factor for sleep apnea, citing to a New York Times article and a journal article. However, these sources address sleep apnea generally, not the specific facts of the Veteran's medical condition and history. The Veteran does not have specialized medical knowledge and is not competent to interpret those sources or apply them to his own circumstances. See Jandreau, 492 F.3d at 1376-77. Moreover, these contentions were of record as of the November 2017 examination, and the examiner nonetheless opined, on review of the record, that the Veteran's sleep apnea was not caused or aggravated by his service-connected impairments. Accordingly, the evidence persuasive weighs against a finding of service connection on a secondary basis. Conclusion As the Veteran has not established entitlement to service connection for sleep apnea under any theory, and the evidence persuasively weighs against finding service connection under any theory, service connection is denied. 2. Entitlement to a TDIU The Veteran seeks a TDIU, asserting that his service-connected disabilities render him unemployable. He expressly asserted unemployability in his September 2017 Notice of Disagreement, alongside increased rating claims for irritable bowel syndrome, mood disorder, and inguinal hernia repair. The appeal period for his TDIU claim therefore begins March 31, 2016 - the effective date of service connection for irritable bowel syndrome and mood disorder and the date of his claim for an increased rating for the inguinal hernia repair. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation because of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id. For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and non-exertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In this case, the Veteran has the following disabilities that are service connected: " intervertebral disc syndrome (IVDS) associated with residuals of left tibia-fibular fracture with leg length discrepancy, rated 10 percent from January 2011 to May 2012, 20 percent from May 2012 to February 2020, and 40 percent from February 2020; " irritable bowel syndrome with GERD, rated at 30 percent from March 2016; " migraine headaches, rated at 30 percent from December 2016; " major depressive disorder with alcohol use disorder associated with IVDS, rated at 30 percent from March 31, 2016; " left lower extremity lumbar radiculopathy associated with IVDS, rated at 20 percent from January 2011; " prostate cancer, residual, rated at 20 percent from August 2022; " residuals of left tibia-fibular fracture with leg length discrepancy, rated as noncompensable from June 2009; " residuals of bilateral inguinal hernia repair, rated as noncompensable from June 2009; and " erectile dysfunction associated with IVDS, rated as noncompensable from March 2016. As of March 31, 2016, the start of the period on appeal, the Veteran's combined rating for all service-connected disabilities was 70 percent. The Veteran's IVDS, major depressive disorder associated with IVDS, left lower extremity radiculopathy associated with IVDS, and erectile dysfunction associated with IVDS may be combined and treated as one disability, given their common etiology. 38 C.F.R. § 4.16(a); see Moody, 30 Vet. App. at 339. As of March 31, 2016, the combined rating for these disabilities was 60 percent. Based on the foregoing, the Veteran has had at least one disability rated at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more throughout the period on appeal. Accordingly, the Board may consider the claim for a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). For the reasons that follow, the Board finds that a TDIU is not warranted. The Veteran reported in April 2016 medical records that he had stopped working the previous month, being mentally "not into it" and having excessive tardiness. In a July 2018 vocational rehabilitation document, the Veteran reported that he had worked as a Honda car salesman August 2015 to April 2016, earning $1,800 per month and leaving because he did not like the hours. He also reported working May 2016 to October 2017 at U.S. Cellular as a retail wireless consultant, earning $3,200 per month and leaving because there was no room for advancement. He then worked October 2017 to January 2018 as a T-Mobile sales representative, earning $1,800 per month and leaving because of poor pay. He began work as a Sprint retail consultant in January 2018, earning $3,200 per month. At a February 2020 VA examination, the Veteran reported working as a Samsung experience consultant for the previous year, describing the work as "okay." Medical records throughout 2022 reflect that the Veteran was working full-time. Most recently, in August 2023, the Veteran reported current employment doing "computer work." The Veteran's earnings in these positions have consistently been above the applicable Federal poverty level. See Department of Health and Human Services, "Prior HHS Poverty Guidelines and Federal Register References," https://aspe.hhs.gov/topics/poverty-economic-mobility/poverty-guidelines/prior-hhs-poverty-guidelines-federal-register-references, retrieved on October 16, 2023. The Veteran has reported at various times that his service-connected disabilities interfered with or were exacerbated by his employment. For instance, he told a vocational counselor in July 2018 that his work at Sprint aggravated his service-connected disabilities. In February 2022, the Veteran reported that trauma and substance misuse affected his ability to work and that he worked from home, isolated with others. At the August 2023 VA examination, the Veteran reported having lost two to four weeks of work time in the last twelve months, saying his work at a laptop hurt his eyes and worsened his service-connected migraines. That said, the Veteran has not raised any allegations suggesting his employment during the period on appeal was in a protected environment such as a family business or sheltered workshop. He has also generally left jobs due to issues such as hours, pay, or advancement, rather than being unable to perform the work. Here, the Board finds that there is no basis for a TDIU. In this regard, the Veteran has been employed for nearly all the period on appeal, has been paid above the poverty level, and has not been employed in a protected environment. (Continued on the next page) ? Given the foregoing, the Veteran's service-connected disabilities do not preclude him from the ability to secure and follow a substantially gainful occupation consistent with his education, skills, training, and work history. The Veteran had substantial, gainful employment for nearly all the period on appeal. Accordingly, a TDIU is not warranted. D. SMART Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Mansfield 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.