Citation Nr: 1616979 Decision Date: 04/28/16 Archive Date: 05/04/16 DOCKET NO. 10-14 699 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Entitlement to service connection for sleep apnea, to include as secondary to a service-connected disease or injury. 2. Entitlement to an increased rating for TBI, currently evaluated as 30 percent disabling. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Appellant (Veteran) represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran served on active duty from August 1971 to June 1972. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs' (VA) Regional Office (RO) in Manchester, New Hampshire. In May 2009, the Veteran testified during a hearing before a Decision Review Officer (DRO) at the RO. In December 2012, the Veteran testified during a videoconference hearing before the undersigned Veterans Law Judge. Transcripts of both hearings have been included in the record. In April 2013, the Board remanded the issues on appeal for additional development and medical inquiry. The issues are again before the Board for appellate consideration. In the April 2013 remand, the Board also sought additional development and medical inquiry for a service connection claim for an acquired psychiatric disorder. The issue is not longer on appeal because the RO granted the claim in a June 2013 rating decision. The Veteran filed a notice of disagreement with the assigned disability rating and effective date, but did not file a substantive appeal following issuance of a statement of the case (SOC) in January 2016. As such, the issue is not before the Board. The record consists of paper and electronic claims files and has been reviewed. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND A remand of the issues on appeal is warranted for the following reasons. First, a notification letter complying with the April 2013 remand instructions should be sent to the Veteran. In April 2013, the Board requested that the Veteran be notified of the old and new criteria pertaining to the evaluation of TBI under Diagnostic Code (DC) 8045 of 38 C.F.R. § 4.124a (2007)( 2012). The Board also requested that the Veteran's increased rating claim be considered under the older criteria prior to October 23, 2008, and under the older or newer criteria (whichever are most favorable) since October 23, 2008. A notification letter was provided to the Veteran in May 2013, but neither that letter nor the subsequent Supplemental SOC (SSOC) detailed or discussed the old and new criteria of DC 8045. See Stegall v. West, 11 Vet. App. 268 (1998). Second, VA should provide the Veteran a medical examination and opinion into his assertion that a sleep disorder is secondary to service-connected psychiatric disability. In the April 2013 remand, the Board requested medical inquiry into the issue of whether a sleep disorder relates either to service or to service-connected TBI. A May 2013 VA examination and report responded to the Board's inquiry. Since that examination, however, the Veteran has been service connected for an acquired psychiatric disorder, which he claims caused his sleep disorder. A medical examination and opinion should be provided into this aspect of his claim as well. 38 C.F.R. § 3.310. Third, VA should attempt to include in the claims file medical evidence pertaining to the Veteran's receipt of disability benefits from the Social Security Administration (SSA). In several older statements of record, the Veteran indicated that his SSA benefits are based on a nonservice-connected back disorder. However, in recent statements of record in support of a TDIU claim he has asserted that symptoms associated with his TBI have caused him to be unemployable. Further, a former employer informed VA that the Veteran's employment was terminated in December 2000 due to headaches. Based on this recent evidence, it now appears that SSA records may contain potentially relevant information. As such, VA is obliged to attempt to obtain and consider those records. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Fourth, the claim for a TDIU should be readjudicated on remand. Since October 2013, the Veteran has repeatedly asserted that his service-connected disabilities, to include TBI, have rendered him unemployable. He asserted a specific claim for a TDIU in November 2013, which the RO denied in an unappealed September 2014 rating decision. Nevertheless, a claim for TDIU is part of an increased rating claim when such is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). As the Veteran has asserted since October 2013 that his TBI causes him to be unemployable, the issue of entitlement remains on appeal and has been added above. Fifth, the Veteran should be provided with another VA compensation examination into his claim for increased rating for TBI. The most recent comprehensive examination was conducted nearly three years ago, in May 2013. In statements of record dated since then, the Veteran has indicated that his symptoms have worsened to such an extent that he is unemployable as the result. A new examination should therefore be provided. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (finding a Veteran is entitled to a new examination after a two-year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). Sixth, the Veteran's claims should be readjudicated in a new SSOC. Since the most recent SSOC dated in June 2013, VA has added a substantial amount of relevant medical evidence into the record, to include a July 2014 VA compensation examination report which addresses TBI symptoms and their effect on the Veteran's ability to work. The record contains an unsigned June 2013 waiver of initial AOJ review of any evidence submitted by the Veteran. Nevertheless, because this appeal is being remanded for other action, on remand, the RO will have the opportunity to review the evidence received since the June 2013 SSOC and issue a new SSOC. 38 C.F.R. §§ 19.31, 20.1304(c) (2015). Furthermore, VA must make all necessary efforts to obtain relevant records in the possession of a Federal agency. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992). All available VA treatment records for the disabilities on appeal should be associated with the Veteran's claims file. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) for the claims on appeal. In particular, the notice should detail both the old and new criteria pertaining to evaluation of residuals of TBI under DC 8045 of 38 C.F.R. § 4.124a. 2. The RO should take appropriate steps to obtain and associate with the record copies of any outstanding VA treatment records, if any, associated with the claims on appeal. 3. Obtain relevant SSA records involving the Veteran. 4. The Veteran should be provided a VA examination to address the nature and likely etiology of his sleep disorder. The examiner should review the claims file to include paper and electronic records, and a copy of this remand. Any and all indicated studies deemed necessary by the examiner should be accomplished. The examiner is requested to offer comments and an opinion addressing whether it is at least as likely as not (50 percent probability or greater) that the Veteran suffers from a sleep disorder that was caused or aggravated (permanently made worse) by his service-connected acquired psychiatric disorder. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation, consistent with 38 C.F.R. § 3.310 (as revised effective in October 2006). The opinion should be supported by a clear rationale. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. 5. Afford the Veteran a VA examination to determine the current severity of his TBI residuals. The examiner should review the claims file to include paper and electronic records, and a copy of this remand. Any and all indicated studies deemed necessary by the examiner should be accomplished. The examiner is requested to perform all necessary clinical testing in accordance with the Compensation and Pension Examination TBI Examination Guidelines. The examiner should comment as to the degree to which the service-connected residuals of a head injury, to include migraine headaches, is manifested by facets of cognitive impairment, including memory; attention; concentration; executive functions; judgment; social interaction; orientation; motor activity; visual spatial orientation; subjective symptoms; neurobehavioral effects; communication; and, consciousness. In so doing, the examiner must specify which symptoms are attributable to the Veteran's TBI, assigning severity levels accordingly, and which symptoms are associated with any other disability. The examiner should opine on whether the Veteran's sleep apnea is a residual of his TBI. Where it is not possible to distinguish which symptoms are attributable to the Veteran's TBI, the examiner must assume, for purposes of the examination, that any such symptom is related to the Veteran's service-connected TBI. With regard to headaches (which have been previously identified as residual to the Veteran's TBI), the examiner should render specific findings as to the frequency and severity of the Veteran's headaches, specifically indicating whether the Veteran suffers very frequent, completely prostrating attacks productive of severe economic inadaptability. The examiner should provide diagnoses of any other disability that is determined to be related to TBI. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 6. The Veteran should be notified that it is his responsibility to report for the examinations and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2015). 7. After the development requested has been completed, the RO should review the examination reports to ensure that they are in complete compliance with the directives of this REMAND. If any report is deficient in any manner, the RO must implement corrective procedures at once. 8. After the completion of any action deemed appropriate in addition to that requested above, the Veteran's claims should be readjudicated. In so doing, the AOJ should adjudicate a TDIU claim. Further, in readjudicating the increased rating claim for residuals of TBI, the older criteria must be applied prior to October 23, 2008, while the old or new criteria (whichever are more favorable) must apply from October 23, 2008. All applicable laws and regulations, and all evidence received since the June 2013 SSOC, to include in the electronic claims file, should be considered. If any benefit sought remains denied, the Veteran should be provided a new SSOC and given the opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).