SLEEP APNEA SYNDROMES (OBSTRUCTIVE CENTRAL MIXED)

A. S. CARACCIOLO · 2026 · Case ID: 26005021

DENIED

Summary

The veteran, who served in the United States Army from May 1971 to May 1973, appeals the denial of service connection for a sleep disability, including obstructive sleep apnea, and the dismissal of entitlement to Total Disability based on Individual Unemployability (TDIU). The Board found no current diagnosis of obstructive sleep apnea; the veteran's reported sleep impairment, including daytime hypersomnolence, was considered a manifestation of his service-connected persistent depressive disorder with alcohol dependence, which is already rated at 50 percent and includes chronic sleep impairment in its criteria. The Board determined that the Veteran's sleep symptoms were adequately compensated by the existing psychiatric rating and did not establish a separate chronic sleep disability. Regarding TDIU, the Board noted that the Veteran had already achieved a 100 percent schedular rating for atherosclerotic cardiovascular disease with coronary artery bypass graft, making the TDIU claim moot for periods prior to October 6, 2014. For periods after October 6, 2014, the Veteran was awarded Special Monthly Compensation (SMC) at the housebound rate, and the Board found that a TDIU award would provide no additional benefit. Therefore, the TDIU claim was dismissed as moot. Service connection for the sleep disability was denied.

Rationale

No current diagnosis of obstructive sleep apnea.; Sleep impairment considered manifestation of service-connected persistent depressive disorder.; Symptoms adequately compensated by existing psychiatric rating.

Service Branch

ARMY

Special Benefit

TDIU

Docket No.

16-05 279

Full Decision Text

Citation Nr: 26005021
Decision Date: 04/29/26 Archive Date: 04/29/26

DOCKET NO. 16-05 279
DATE: April 29, 2026

ORDER

Entitlement to service connection for a sleep disability is denied.

Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is dismissed.

FINDINGS OF FACT

1. The Veteran does not have a chronic sleep disability, to include obstructive sleep apnea; and his symptoms of sleep impairment, to include insomnia, are manifestations of his service-connected persistent depressive disorder with history of other and unspecified alcohol dependence in remission.

2. Prior to October 6, 2014, the Veteran has been assigned a combined 100 percent schedular rating; however, as he does not meet the criteria for special monthly compensation (SMC) at any time during the period on appeal, the issue of TDIU as a result of service connected disabilities is moot.

3. From October 6, 2014, the Veteran has been in receipt of SMC at the housebound rate on account of atherosclerotic cardiovascular disease with coronary artery bypass graft, rated at 100 percent and additional service-connected disabilities rated at 60 percent or more; an award of TDIU can result in no further benefit.

CONCLUSIONS OF LAW

1. The criteria for service connection for a sleep disability due to service or service-connected persistent depressive disorder with history of other and unspecified alcohol dependence in remission are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.

3. From October 6, 2014, there is no question of law or fact involving an award of entitlement to special monthly compensation based on award of TDIU; the appeal for TDIU from October 6, 2014, is moot. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.340, 3.341, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from May 1971 to May 1973, with additional service in the Army Reserve. During his period of service, he earned the National Defense Service Medal and Marksman Badge (Rifle M-16).

In February 2023, the Veteran testified before the undersigned Veterans Law Judge at a Board of Veterans' Appeals (Board) hearing. A transcript of the hearing is of record.

The appeal was previously before the Board in May 2023, at which time the Board remanded the issues of entitlement to service connection for diabetes mellitus, type II; a lumbar spine disability; a neurological disability of the right lower extremity; a neurological disability of the left lower extremity; an acquired psychiatric disorder, to include unspecified depressive disorder and unspecified alcohol dependence in remission; hypertension; a cardiovascular disability, to include coronary artery disease; a sleep disability, to include obstructive sleep apnea; and erectile dysfunction, as well as entitlement to special monthly compensation (SMC) based on the loss of use of a creative organ and a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities for further development.

Subsequently, by a December 2023 rating decision, the agency of original jurisdiction (AOJ) granted service connection for lumbar strain, right lower extremity radiculopathy of the sciatic nerve, and left lower extremity radiculopathy of the sciatic nerve. Thereafter, service connection for persistent depressive disorder with history of other and unspecified alcohol dependence in remission was granted by an August 2024 rating decision. Next, by a May 2025 rating decision, service connection for hypertension, atherosclerotic cardiovascular disease with coronary artery bypass graft, scar of the anterior trunk, scar of the left lower extremity, and erectile dysfunction, as well as special monthly compensation based on loss of use of a creative organ were granted. Lastly, service connection for diabetes mellitus, type II,
J) granted service connection for lumbar strain, right lower extremity radiculopathy of the sciatic nerve, and left lower extremity radiculopathy of the sciatic nerve. Thereafter, service connection for persistent depressive disorder with history of other and unspecified alcohol dependence in remission was granted by an August 2024 rating decision. Next, by a May 2025 rating decision, service connection for hypertension, atherosclerotic cardiovascular disease with coronary artery bypass graft, scar of the anterior trunk, scar of the left lower extremity, and erectile dysfunction, as well as special monthly compensation based on loss of use of a creative organ were granted. Lastly, service connection for diabetes mellitus, type II, was granted by an August 2025 rating decision. Thus, these issues are no longer for appellate consideration.

1. Entitlement to service connection for a sleep disability

The Veteran contends that he is entitled to service connection for a sleep disorder, to include obstructive sleep apnea.

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to prevail on a claim of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); Allen v. Brown, 8 Vet. App. 374 (1995).

In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra.

Here, a review of the medical evidence fails to show that the Veteran has been diagnosed with obstructive sleep apnea at any time during the course of the appeal or proximate thereto. See Brammer, supra; McClain, supra; Romanowsky, supra.

Notably, the Veteran underwent a home sleep study and appeared for a VA sleep apnea examination in January 2025. The VA examiner noted that Veteran's reports of persistent daytime hypersomnolence; however, it was determined that the Veteran did not have, nor has he ever had sleep apnea. The examiner opined that the Veteran did not have a diagnosis of sleep apnea but did have a diagnosis of insomnia. The examiner explained that sleep disturbance in depression was quite prevalent and the majority of individuals with depression experienced sleep disturbances. Studies indicated that these conditions caused significant alterations in brain neurotransmitter function, as well as led to significant impairments in quality of life. The examiner further explained that three quarters of people with depression had trouble falling asleep or staying asleep.

The Board must therefore consider whether the Veteran's reports of sleep impairment are sufficient to establish a chronic sleep disability. However, as the Veteran's reported sleep impairment, to include persistent daytime hypersomnolence, is contemplated by the rating assigned his service-connected persistent depressive disorder with history of other and unspecified alcohol dependence in remission, the Veteran does not manifest a disability that is separate and distinct from his already service-connected psychiatric condition. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994); see also VAOPGCPREC 23-97 and VAOPGCPREC 09-98.

The Veteran's service-connected persistent depressive disorder with history of other and unspecified alcohol dependence in remission and insomnia is rated as 50 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9433 for persistent depressive disorder (dysthymia) under the General Rating Formula for Mental Disorders. The
in remission, the Veteran does not manifest a disability that is separate and distinct from his already service-connected psychiatric condition. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994); see also VAOPGCPREC 23-97 and VAOPGCPREC 09-98.

The Veteran's service-connected persistent depressive disorder with history of other and unspecified alcohol dependence in remission and insomnia is rated as 50 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9433 for persistent depressive disorder (dysthymia) under the General Rating Formula for Mental Disorders. The general rating formula includes chronic sleep impairment in the rating criteria. Moreover, a May 2025 rating decision specifically contemplated insomnia as a symptom of the Veteran's persistent depressive disorder with history of other and unspecified alcohol dependence in remission and considered such in support of continuing the award of a 50 percent disability rating.

In light of the foregoing, the Board finds that the Veteran's reports of a sleep disorder are adequately compensated for and contemplated by the disability rating assigned to his service-connected persistent depressive disorder with history of other and unspecified alcohol dependence in remission. His symptoms result in some impairment, but do not establish the presence of a chronic sleep disability that is separate and distinct from his service-connected psychiatric disability.

The existence of a current disability is the cornerstone of a claim for VA disability compensation, and without a current disability, service connection is not warranted. See Shedden, supra. Although the Board is sympathetic to the Veteran's claim, the evidence weighs against the Veteran's claim of entitlement to service connection for a sleep disorder, to include obstructive sleep apnea. Therefore, the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the evidence weighs against the Veteran's claim of entitlement to service connection, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

2. Entitlement to a TDIU

The Veteran contends that he is entitled to a TDIU. Specifically, the Veteran asserts that his service-connected disabilities manifest in symptomatology of such severity that he is prevented from securing or following substantially gainful employment.

Total disability ratings for compensation based on individual unemployability 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 disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service- connected disabilities. 38 C.F.R. § 4.16(b).

The central inquiry is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

For a veteran to prevail in his claim for TDIU, the record must reflect circumstances, apart from non-service-connected conditions, that place him in a different position than other veterans who meet the basic schedular criteria. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the veteran, considering his service-connected disorders, can perform the physical and mental acts required by employment, not whether he can find employment. See Van Hoose, 4 Vet. App. at 361.

"Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings
his claim for TDIU, the record must reflect circumstances, apart from non-service-connected conditions, that place him in a different position than other veterans who meet the basic schedular criteria. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the veteran, considering his service-connected disorders, can perform the physical and mental acts required by employment, not whether he can find employment. See Van Hoose, 4 Vet. App. at 361.

"Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16. Marginal employment may also be held to exist, on a facts found basis (including employment in a protected environment), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. The Court has defined "employment in a protected environment," which is a type of marginal employment, as "employment in a lower-income position that, due to the veteran's service-connected disability or disabilities, is shielded in some respect from competition in the employment market." Labruzza v. McDonough, 37 Vet. App. 111, 123 (2024).

The Board also notes that the ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; rather, that determination is for the adjudicator. See 38 C.F.R. § 4.16(a); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). In sum, to warrant a TDIU, the evidence must show that the claimant is incapable of "performing the physical and mental acts required" to be employed. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

As indicated above, service connection has been established for atherosclerotic cardiovascular disease with coronary artery bypass graft, rated 100 percent disabling effective May 5, 2014; persistent depressive disorder with history of other and unspecified alcohol dependence in remission and insomnia, rated 20 percent disabling, effective October 6, 2014; lumbar strain, rated 20 percent disabling, effective May 5, 2014; diabetes mellitus, type II, rated 20 percent disabling, effective May 5, 2014; right upper diabetic peripheral neuropathy, rated 20 percent disabling, effective May 5, 2014; left upper diabetic peripheral neuropathy, rated 20 percent disabling, effective May 5, 2014; right lower extremity radiculopathy with diabetic neuropathy of the sciatic nerve, rated 10 percent disabling, effective May 5, 2014 and 20 percent disabling, effective May 9, 2025; left lower extremity radiculopathy with diabetic neuropathy of the sciatic nerve, rated 10 percent disabling, effective May 5, 2014 and 20 percent disabling, effective May 9, 2025; hypertension, rated 0 percent disabling, effective May 5, 2014; erectile dysfunction, rated 0 percent disabling, effective May 5, 2014; scar of the anterior trunk, rated 0 percent disabling, effective May 5, 2014; and scar of the left lower extremity, rated 0 percent disabling, effective May 5, 2014. See Rating Decision-Codesheet, dated August 21, 2025.

Here, for the entire period on appeal from May 5, 2014, the Veteran has a 100 percent disability rating based solely on his service-connected atherosclerotic cardiovascular disease with coronary artery bypass graft. See 38 C.F.R. § 4.25. The Court has recognized that a 100 percent rating under the Schedule for Rating Disabilities means that a veteran is totally disabled. See Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). Thus, if VA has found a veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no
Veteran has a 100 percent disability rating based solely on his service-connected atherosclerotic cardiovascular disease with coronary artery bypass graft. See 38 C.F.R. § 4.25. The Court has recognized that a 100 percent rating under the Schedule for Rating Disabilities means that a veteran is totally disabled. See Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). Thus, if VA has found a veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period); see also Green v. West, 11 Vet. App. 472, 276 (1998) (holding that, if a 100 percent schedular rating is granted, a veteran is not also entitled to TDIU for the same period).

The Board notes, however, that a grant of a 100 percent schedular rating does not necessarily render the issue of entitlement to a TDIU rating moot, as a TDIU rating could, in certain circumstances, allow for ancillary benefits, such as rendering the veteran eligible for special monthly compensation (SMC). See Bradley v. Peake, 22 Vet. App. 280 (2008).

SMC benefits by reason of being housebound are payable under 38 U.S.C. § 1114(s) if a veteran has a single disability rated as 100 percent disabling and has either an additional service-connected disability or disabilities independently ratable at 60 percent or more, or is "permanently housebound" by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). SMC may be warranted if the veteran had a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. See Bradley, 22 Vet. App. at 280 (analyzing 38 U.S.C. § 1114(s)); see also 75 Fed. Reg. 11,229-04 (March 10, 2010) (withdrawing VAOPGCPREC 6-1999). Additionally, the Court has held that although a TDIU may satisfy the "rated as total" element of section 1114(s), a TDIU based on multiple underlying disabilities cannot satisfy the section 1114(s) requirement of "a service-connected disability" because that requirement must be met by a single disability. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011).

This case is therefore distinguished from the case in Bradley, in that the grant of the Veteran's TDIU is not predicated on a single disability but is predicated on multiple service-connected disabilities. Specifically, the Veteran asserts his entitlement to TDIU is based on the cumulative symptomatology associated with his service-connected disabilities. Therefore, this entitlement of TDIU would be based on impairment from several service-connected disabilities, and not just a single disability.

As the Veteran asserts his TDIU is predicated on multiple service-connected disabilities, the percentage rating criteria for SMC at the housebound rate have not been met at any point during the period on appeal prior to October 6, 2014. As such, entitlement to a TDIU prior to October 6, 2014, is considered moot, as the Veteran is already in receipt of a schedular evaluation of 100 percent from that time. Accordingly, the findings in Bradley are not applicable in this case and the receipt of a total schedular rating for the Veteran's service-connected disabilities therefore renders the claim of entitlement to a TDIU prior to October 6, 2014, moot. See Herlehy, 15 Vet. App. at 35.

Moreover, the Board notes that SMC payable at the housebound rate under 38 U.S.C. § 1114(s) was awarded by a May 2025 rating decision, effective October 6, 2014, the earliest date in which the Veteran has a single service-connected disability rated at 100 percent and additional separate and distinct service-connected disabilities independently ratable at 60 percent. 38 U.S.C. § 111
applicable in this case and the receipt of a total schedular rating for the Veteran's service-connected disabilities therefore renders the claim of entitlement to a TDIU prior to October 6, 2014, moot. See Herlehy, 15 Vet. App. at 35.

Therefore, the award of a TDIU would result in no further benefit, and the issue of entitlement to a TDIU from October 6, 2014, is rendered moot, and the matter is dismissed. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008).

A. S. CARACCIOLO

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Tracy O. Joseph, 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.

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