Citation Nr: 18140275 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 16-15 298A DATE: October 2, 2018 ORDER New and material evidence has not been received to reopen the claim for service connection for tinnitus and the request to reopen the claim is denied. New and material evidence has not been received to reopen the claim for service connection for sleep apnea and the request to reopen the claim is denied. REMANDED Entitlement to a disability rating in excess of 70 percent for service-connected major depressive disorder is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The claim for service connection for tinnitus was previously denied in an October 2012 rating decision. The Veteran did not appeal the decision and it is therefore final. 2. The claim for service connection for sleep apnea was previously denied in an October 2012 rating decision. The Veteran did not appeal the decision and it is therefore final. 3. Evidence added to the record since the October 2012 denial is cumulative and redundant of the evidence of record at the time of such decision and does not raise a reasonable possibility of substantiating the appellant’s claim for service connection for a bilateral hip disability. CONCLUSIONS OF LAW 1. The October 2012 decision that denied service connection for tinnitus is final. 38 U.S.C. § 7104 (b) (West 2015); 38. C.F.R. § 20.1103 (2017). 2. The October 2012 decision that denied service connection for sleep apnea is final. 38 U.S.C. § 7104 (b) (West 2015); 38. C.F.R. § 20.1103 (2017). 3. New and material evidence has not been received to reopen the claim of entitlement to service connection for tinnitus and sleep apnea. 38 U.S.C. § 5108 (West 2015); 38 C.F.R. § 3.156 (a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 2006 to February 2011 in the United States Air Force. In an April 2016 rating decision, an RO granted an increased rating for Veteran’s service-connected migraines to 50 percent disabling, the maximum schedular rating, effective the date of the increased rating claim. As this represent full grants of the benefits sought with respect to this issue, it is no longer before the Board. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). New and Material Evidence The Veteran seeks to reopen claims of entitlement to service connection for tinnitus and sleep apnea. The claims were previously denied in an October 2012 rating decision because there was no nexus between any tinnitus disability and the Veteran’s service and no current diagnosis of sleep apnea. At the time of the previous final denials, the evidence considered included the Veteran’s service treatment records (STRs), post-service VA treatment records, VA examination, and the Veteran’s original claim. The question before the Board is whether new and material evidence has been submitted to reopen the claim. Since the last final denial, the Veteran has not stated his theory of entitlement for service connection for tinnitus and there has been no diagnosis of sleep apnea. The relevant evidence added to the record consists of additional VA treatment records. The Veteran has not submitted or identified any evidence to demonstrate a relationship between tinnitus and his service, or a diagnosis of sleep apnea. Accordingly, the Board finds that new and material evidence has not been received. There has been no indication, subjective or objective, of a nexus to service for tinnitus and no objective diagnosis of sleep apnea. Thus, none of the recent submissions relates to an unestablished fact necessary to decide the claim or raises a reasonable possibility of substantiating the claim. Therefore, given that no new and material evidence has been submitted, the claims to reopen must be denied. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010). REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 70 percent for service-connected major depressive disorder is remanded. In a February 2017 statement, the Veteran asserted that symptoms associated with his service connected maor depressive disorder disability have increased in severity since the Veteran was last examined by VA. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his service-connected psychiatric disability. 2. Entitlement to TDIU is remanded. Finally, because a decision on the remanded issue of entitlement to increased rating for service-connected major depressive disorder could significantly impact a decision on the issue of TDIU, the issues are inextricably intertwined. A remand of the claim of entitlement to TDIU is required. The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected major depressive disorder. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairments due to major depressive disorder alone and discuss the effect of the Veteran’s major depressive disorder on any occupational functioning and activities of daily living. (Continued on the next page)   2. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to a TDIU. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P.S. McLeod