SLEEP APNEA SYNDROMES (OBSTRUCTIVE CENTRAL MIXED)

STEVEN D. REISS · 2025 · Case ID: A25102261

MIXED

Summary

The Veteran, an Air Force Veteran who served from August 1971 to June 1974, appealed a rating decision concerning his central sleep apnea and sought Total Disability based on Individual Unemployability (TDIU). The Board of Veterans' Appeals (Board) reviewed the evidence of record at the time of the January 2023 agency of original jurisdiction decision. The Veteran disagreed with the evaluation assigned for sleep apnea and asserted TDIU as part of his increased rating claim. The Board considered evidence submitted within the allowed periods. For central sleep apnea, the Veteran was granted service connection and a 30 percent rating, noted as related to opioid use for a service-connected back disability. This rating was based on persistent daytime hypersomnolence without need for a breathing assistance device like CPAP. The Board found the evidence persuasively weighed against a rating higher than 30 percent, as records indicated no requirement for CPAP or continuous medication, and no chronic respiratory failure. Therefore, the benefit of the doubt doctrine was not applied to the sleep apnea claim, and the increased rating was denied. Regarding TDIU, the Veteran's claims and submitted forms indicated that his service-connected disabilities, including PTSD and sleep apnea, collectively precluded him from substantially gainful employment. The Board found the economic component of TDIU met, noting the Veteran's limited work history and substantial functional impairment from PTSD, sleep apnea, back issues, and other conditions. The Board found the evidence in support of and against TDIU to be in approximate balance, and resolving all reasonable doubt in the Veteran's favor, granted TDIU.

Rationale

Evidence persuasively weighs against a rating in excess of 30 percent.; Records show no requirement for CPAP or chronic respiratory failure.; Benefit of the doubt doctrine not applied as evidence favors denial of increased rating.

Service Branch

AIR FORCE

Special Benefit

TDIU

Diagnostic Code

6847

Docket No.

250423-547339

Full Decision Text

Citation Nr: A25102261
Decision Date: 11/25/25 Archive Date: 11/25/25

DOCKET NO. 250423-547339
DATE: November 25, 2025

ORDER

A rating in excess of 30 percent for central sleep apnea is denied.

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), is granted.

FINDINGS OF FACT

1. For the entire period on appeal, the Veteran's sleep apnea, which was due to service-connected back disability, is manifested by no more than persistent daytime hypersomnolence that does not require a breathing assistance device such as a CPAP machine.

2. During the period on appeal, it is reasonably shown that the impact of the Veteran's service-connected disabilities in aggregate preclude him from securing or following a substantially gainful occupation.

CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 30 percent for central sleep apnea are not met. 38 U.S.C. §§ 1154(a), 1155, 510(b)7; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.103 DC 6847.

2. The criteria for entitlement to TDIU have been met during the period on appeal. 38 U.S.C. §§ 1154(a), 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16(a), 4.19.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Air Force from August 1971 to June 1974.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2024 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection and a 30 percent rating for central sleep apnea effective April 13, 2021. The decision stems from a claim for Higher Level Review of a January 2023 rating decision denying service connection for sleep apnea. That decision stems from an April 2021 claim.

In April 2025, VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket. He disagreed with the evaluation assigned for sleep apnea and also asserted TDIU as part and parcel of this increased rating claim pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).

Therefore, the Board may only consider the evidence of record at the time of the January 2023 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801.

Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is deciding the claims, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

Increased Rating

Disability ratings are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4.

Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved
considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

Increased Rating

The Veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A claimant may experience multiple distinct degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods.

Under DC 6847 for sleep apnea syndrome, a noncompensable rating is warranted if the Veteran's sleep apnea is asymptomatic but there is documented sleep disorder. A 30 percent rating is warranted if the Veteran demonstrates symptoms of persistent daytime hypersomnolence. A 50 percent rating is warranted if the Veteran requires the use of a breathing assistance device such as a CPAP machine. The maximum rating of 100 percent is warranted if the Veteran's sleep apnea causes chronic respiratory failure with carbon dioxide retention or cor pulmonale, or when a tracheostomy is required. 38 C.F.R. § 4.97.

A rating in excess of 30 percent for central sleep apnea is denied.

Service connection and a 30 percent rating under DC 6847 were granted in the April 2024 rating decision on appeal. It was noted that the sleep apnea was related to opioid use for the service-connected back disability.

The disability was considered 30 percent disabling based on evidence that showed the Veteran demonstrates symptoms of persistent daytime hypersomnolence but does not require a breathing assistance device such as continuous airway pressure (CPAP) machine.

The May 2021 VA examination indicates that the Veteran has central sleep apnea since 2014 with persistent daytime hypersomnolence but does not require continuous medication required for control nor does he require the use of a breathing assistance device such as a continuous positive airway pressure (CPAP) machine. There was no chronic respiratory failure with carbon dioxide retention or cor pulmonale or requiring tracheostomy.

The treatment records relevant to the period on appeal reflect that the Veteran has neither been prescribed or otherwise required continuous medication for control nor required the use of a breathing assistance device such as a CPAP for his sleep apnea.

In April 2025, the Veteran's attorney submitted VA medical records that include a January 2024 treatment note wherein it was noted that he did not require home oxygen or CPAP.

Here, the current findings are persuasively against a rating in excess of 50 percent for OSA.

In reaching this determination, the Board finds that the record shows that the Veteran's sleep apnea does not require use of breathing assistance device such as CPAP. The evidence also is persuasively against showing there is chronic respiratory failure with carbon dioxide retention or cor pulmonale or requiring tracheostomy.

For the above-said reasons, the evidence is neither evenly balanced nor approximately so regarding whether a rating in excess of 30 percent is warranted for the Veteran's central sleep apnea. Rather, the evidence persuasively weighs against such a finding. The benefit of the doubt doctrine, see 38 U.S.C. § 5107 (b), is therefore not for application as to this claim. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). The claim is therefore denied.

TDIU

It is the established policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.

A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for
benefit of the doubt doctrine, see 38 U.S.C. § 5107 (b), is therefore not for application as to this claim. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). The claim is therefore denied.

TDIU

A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.

Entitlement to a TDIU is based on an individual's particular circumstances. 38 C.F.R. § 4.16; Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). Thus, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history, but not his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd, 27 Vet. App. at 85-86.

The ultimate question of whether a Veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013).

In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to:

The veteran's history, education, skill, and training;

Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, 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. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity.

Ray v. Wilkie, 31 Vet. App. 58, 73 (2019).

The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. 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.

A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable at 40 percent or more, and there is sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a).

Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstance." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)).

TDIU is granted.

As to TDIU, the Veteran's statements and his attorney's arguments have reasonably raised the theory that he has been so impaired throughout the appeal period that he is unable to work due to service-connected disabilities in aggregate to specifically include his sleep apnea and also PTSD. See, e.g., VA form 10182 and VA form 21-8940 dated in 2014 and resubmitted in April 2025.

Pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), TDIU is part and parcel of increased rating claims. The VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) is
As to TDIU, the Veteran's statements and his attorney's arguments have reasonably raised the theory that he has been so impaired throughout the appeal period that he is unable to work due to service-connected disabilities in aggregate to specifically include his sleep apnea and also PTSD. See, e.g., VA form 10182 and VA form 21-8940 dated in 2014 and resubmitted in April 2025.

Pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), TDIU is part and parcel of increased rating claims. The VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) is of record, with the Veteran having submitted the form initially in 2014 and now resubmitting the form in April 2025 within the 90-day evidence period window. Indeed, the Court has held that TDIU is never "a separate claim for benefits" but is rather another pathway "to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or... as part of a claim for increased compensation." See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). As such, the Court has declared that TDIU cannot exist on its own but is instead inextricably tied to the proper rating of a particular disability. See Phillips v. McDonough, 37 Vet. App. 394, 400 (2024).

During the period on appeal the Veteran was not working.

The April 2024 rating decision on appeal reflects the Veteran's service-connected disabilities relevant to the period on appeal include PTSD rated 70 percent, degenerative changes of the lumbar spine rated 40 percent, sleep apnea, rated 30 percent, diabetes, rated 20 percent, and residuals of gunshot wound to the neck, tinnitus, and right and left lower extremity radiculopathies, each rated 10 percent. The combined rating is 90 percent. Favorable findings made in a subsequent December 2024 rating decision, which are binding on the Board, include service connection and 20 percent ratings assigned for each neuropathy of the left and right upper extremities effective August 10, 2022, increasing the combined rating to 100 percent from that date.

The treatment record reflects that the Veteran is reportedly retired. He also reported in his VA Form 21-8940 that he last worked in 1993 as a nuclear technician, making at most $35,000 in 1980. Before 1993 he indicates he worked at Area 51 in Nevada. He has 2 years of college. He left the job in 1993 due to his disability.

The Board as finder of fact finds the economic component of TDIU has been met throughout the period on appeal.

Reading his VA form 10182 and his VA Form 21-8940 together, it is clear the Veteran maintains that it was the combination of his service-connected disabilities that precluded work.

The Veteran's February 2014 VA PTSD exam reflects that his PTSD is based on the stressor of being shot by his father in the neck in 1971 while home on leave and subsequent assaultive instances in service thereafter. The 70 percent rating was assigned in March 2014 based on impaired impulse control, inability to establish and maintain effective relationships, difficulty in establishing and maintaining effective work and social relationships, occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, anxiety, chronic sleep impairment, depressed mood and suspiciousness.

Manifestations of the sleep apnea noted above include persistent daytime hypersomnolence.

It is noted that his back and lower extremities present substantial impairment to include painful and limited motion as well as numbness,

The critical facts are not in dispute. The examination and treatment record reflects substantial functional impairment reasonably attributable to his combination of service-connected disabilities in aggregate, with particularly impactful impairment due to PTSD and sleep apnea. The Board specifically notes the combined impact on ability to perform work-type abilities clearly presented by the combination of all of the service-connected impairments during the period in question.

The record supports the assertion that his service-connected conditions greatly impact his ability to perform work-type activity and cause significant functional issues with day-to-day activities. The Board acknowledges these substantial tangible physical, exertional and non-exertional and mental functional limitations were evidenced throughout the period on appeal.

The Board finds the evidence in support of and against TDIU is at least in approximate balance.

Given the evidence of the severity of the Veteran's service-connected conditions, and in light of his individual work experience, and with the resolution
due to PTSD and sleep apnea. The Board specifically notes the combined impact on ability to perform work-type abilities clearly presented by the combination of all of the service-connected impairments during the period in question.

The Board finds the evidence in support of and against TDIU is at least in approximate balance.

Given the evidence of the severity of the Veteran's service-connected conditions, and in light of his individual work experience, and with the resolution of all reasonable doubt in his favor, the Board finds that the evidence shows he is entitled to an award of TDIU due to his disabilities in aggregate. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013).

STEVEN D. REISS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Nancy Rippel

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.

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