Citation Nr: 18146636
Decision Date: 10/31/18	Archive Date: 10/31/18

DOCKET NO. 16-02 097
DATE:	October 31, 2018
ORDER
Entitlement to rating higher than 50 percent for depressive disorder is denied. 
A 40 percent rating for right knee disability is granted, effective November 03, 2010 to February 24, 2015, subject to the laws and regulations governing the payment of VA benefits. 
Entitlement to a rating higher than 30 percent effective April 1, 2016 for a right knee disability is denied.
Entitlement to rating higher than 10 percent for right ankle disability is denied.
An effective date of November 3, 2010 for 50 percent rating for maxillary sinusitis is granted, subject to the laws and regulations governing the payment of VA benefits. 
Entitlement to service connection for tinnitus is granted.
REMANDED
Entitlement to service connection for disability of the cervical spine (neck) is remanded.
Entitlement to service connection for disability of lumbar spine (back) is remanded
Entitlement to service connection for sleep apnea is remanded.
Entitlement to a total rating based on individual unemployability due to service connected disability (TDIU) is remanded.
FINDINGS OF FACTS
1. The Veteran’s depressive disorder is not manifested by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.
2. From November 3, 2010 to February 24, 2015 the Veteran’s right knee disability resulted in function loss that approximates an extension limited to 30 degrees. 
3. On February 24, 2015, the Veteran underwent a total knee replacement surgery on his right knee, and since that time, he continues to experience intermediate degree of pain, weakness, or limited motion.  
4. The Veteran’s right ankle disability is not manifested by marked limitation of range of motion.
5. The Veteran’s maxillary sinusitis was shown to be manifested by near constant maxillary sinusitis with headaches, pain and purulent discharge or crusting prior to August 06, 2012. 
6. The Veteran’s tinnitus is etiologically related to his military service.

CONCLUSIONS OF LAW
1. The criteria for a rating higher than 50 percent for depressive disorder have not been met. 38 U.S.C. §1155; 38 C.F.R. §§ 4.1, 4.7,4.10, 4.27, 4.40, 4.71a, Diagnostic Code 9434.
2. The criteria for right knee disability rating of 40 percent have been met from November 3, 2010 to February 24, 2015. 38 U.S.C.§ 1155; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5261.
3. From April 1, 2016, the criteria for a rating higher than 30 percent for right knee disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5055.
4. The criteria for a rating higher than 10 percent for right ankle disability have not been met. 38 U.S.C. §1155; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5271.
5.  The criteria for an effective date of November 3, 2010 for the assignment of a 50 percent disability rating for service-connected for maxillary sinusitis have been met. 38 U.S.C.§ 1155; 38 C.F.R. §§ 3.400, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 6513.
6. The criteria for service connection for tinnitus are met. 38 U.S.C.§§ 1110, 5107 (b); 38 C.F.R. §§ 3.303, 3.307, 3.309.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from January 1978 to October 1996.
In general, it is presumed that a veteran is seeking the maximum benefit allowed by law and regulation when claiming an increased rating and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See A.B. v. Brown, 6 Vet. App. 35 (1993). In this case, the Veteran has undergone total knee replacement surgery and he was granted 100 percent rating for a year following his surgery.  Accordingly, the issue before the Board, with respect to the disability rating for the Veteran’s right knee, is the time period where his knee disability was not assigned a 100 percent disability rating. 
Increased Rating
The Veteran is seeking increase rating for his service-connected depressive disorder, right knee disability, and right ankle disability. 
The VA’s Schedule for Rating Disabilities is used to determine disability ratings once a disability is service-connected. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.  In the Rating Schedule, diagnostic codes (DC) are assigned to specific disabilities. These DCs designate percentage ratings based on the average functional impairment of the Veteran due to a service-connected disability. 38 C.F.R. §§ 3.321, 4.10.  
1. Depressive Disorder
The Veteran’s depressive disorder is currently rated as 50 percent disabling under DC 9434. 
DC 9434 is part of the General Rating Formula for Mental Disorders. Under the General Rating Formula, A 50 percent evaluation is warranted where the disorder is manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory for example, retention of only highly learned material, forgetting to complete tasks; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.
A 70 percent rating is warranted where there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. Id.
A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id.
Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). 
In this case, the evidence does not support a rating higher than 50 percent. To that end, the Veteran underwent VA examinations in November 2015, November 2013, and November 2011. In these exams, the examiners noted that his depression results in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Furthermore, his condition is manifested by depression once or twice a week, sleep impairment, anxiety, as well as disturbance of motivation and mood. During these examinations, the Veteran reported irritability and difficulty concentrating. The exams show that the Veteran had good hygiene, clear and organized speech, as well as good insight and judgment. In addition, the Veteran is found to be able to manage his own finances.  In summary, the Veteran’s depression symptoms reflected in the examinations are contemplated by the criteria for a 50 percent disability rating.
The Veteran’s attorney representative contends that the Veteran’s disability approximates the level contemplated by a 70 percent disability rating partly because he has suicidal ideation. During the November 2013 VA examination, the Veteran reported having passive suicidal ideation. However, the November 2011 and November 2015 VA examination reports reflect that the Veteran did not have suicidal or homicidal ideation. The October 2010, November 2010, July 2014, July 2015, and November 2015 VA treatment records all reflect that the Veteran denied suicidal and homicidal ideation. 
The Board notes that suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas.  See Bankhead v. Shulkin, 29 Vet. App. 10, 25 (2017) (the language of the regulation indicates that the presence of suicidal ideation alone, that is, a veteran’s thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas). In this case, however, while the Veteran reported passive suicidal ideation in one VA examination, he consistently otherwise denied thoughts of suicide throughout the appeal period. Therefore, when viewed holistically, the Board finds that the medical evidence of record does not depict a level of impairment contemplated by a 70 percent disability rating. 
In addition, in the brief submitted to the Board, the Veteran’s attorney representative has highlighted the November 2013 VA examination, where the examiner noted that the Veteran reported “feeling paranoid that someone is coming up behind” him when describing the fact that he has anxiety due to his hearing loss. He also avers that the Veteran’s condition resulted in his marriages ending, and that he has anger and irritability that causes violent behavior leading to his arrest. The Board has considered these contentions, but his difficulty maintaining social relationship, as well as his anger and irritability are symptoms contemplated by a 50 percent disability rating. The medical evidence reflects that the Veteran functions independently, he has good hygiene, clear and organized speech, as well as good insight and judgment.  Therefore, considering the totality of the evidence of record, the Board finds that the evidence viewed holistically does not show occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood considering all the symptoms present.  Therefore, the evidence does not depict a disability picture that approximates a level of impairment contemplated by a 70 percent rating throughout the appeal period. 
2. Knee Disability 
The Veteran underwent total knee replacement surgery on February 24, 2015. Accordingly, the Veteran’s right knee disability was rated under DC 5261 before his surgery and under DC 5055 thereafter. 
A.	Knee Disability Rating Before Total Replacement Surgery. 
The Veteran’s right knee was rated as 30 percent disabling under DC 5261 before he got total knee replacement surgery in February 24, 2015. 
As a preliminary matter, it is noteworthy that there are several DCs that are applicable to knee disabilities found in 38 C.F.R. § 4.71a. However, DC 5260 (flexion), 5256 (ankylosis of the knee), 5257(recurrent subluxation or later instability), 5258 (dislocated semilunar cartilage), 5259 (symptomatic removal of semilunar cartilage), 5262 (impairment of the tibia and fibula), and 5263 (genu recurvatum) are all inapplicable in this case. The evidence, simply does not reflect findings or a history consistent with these conditions. 
On the other hand, DC 5261(extension) is for possible application. Under DC 5261, limitation of extension of the leg, a 0 percent rating is assigned for a limitation of extension of the leg to 5 degrees. When extension is limited to 10 degrees, a 10 percent rating is assigned. 
Full range of knee motion is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II.
VA must also analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss. DeLuca v. Brown, 8 Vet. App. 202 (1995). However, pain that does not result in additional functional loss does not warrant a higher rating. Mitchell v. Shinseki, 25 Vet. App. 32 (2011).
The United States Court of Appeals for Veterans Claims (CAVC), in Correia v. McDonald, has held that a VA range of motion examination must include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.  28 Vet. App. 158 (2016).  To the extent that the VA examinations relevant to this appeal period did not satisfy these criteria, as the knees have undergone replacement surgery a remand to correct any such error under Correia is not feasible. Notwithstanding, the examinations of record are adequate to adjudicate this claim. 
A November 2013 VA examination reflects that the Veteran did not have limitation of extension even after repetitive use test. At that time, the Veteran’s right knee disability resulted in less movement than normal, pain on movement that interferes with his ability to sit, stand and weight-bearing. However, a VA examination in March 2011, found that the Veteran had 25 degrees of extension. The Veteran reported experiencing frequent flare-ups manifested by swelling of the knee, especially after standing for 30 minutes.  At that time, the Veteran was unable to perform repetitive range of motion test due to significant pain. This examination reflects a limitation of range of extension higher than the 20 degrees that is consistent with a 30 percent disability rating.  Considering the Veteran’s reported flare-ups and his inability to perform repetitive use test during the March 2011, the Board has opted to resolve the doubt of whether additional functional loss is caused by pain, weakness, or flare-ups in favor of the Veteran. Therefore, the Board finds that the severity of the Veteran’s disability closely approximates the level of impairment contemplated by a 40 percent rating during that exam. However, the evidence does not show that the Veteran’s range of extension would be limited to 45 degrees for a 50 percent disability rating to be warranted.  
B.	Knee Disability Rating After Total Knee Replacement Surgery. 
With respect the period after the Veteran’s total knee replacement surgery, the Veteran’s right knee is currently rated at 30 percent under DC 5055.  
Under DC 5055, a disability rating of 100 percent is assigned for one year following the knee replacement surgery—which was assigned to the Veteran’s knees in this case.  Thereafter, it requires an assignment of 30 percent disability rating when there is intermediate degree of residual weakness, pain or limitation of motion rate by analogy to diagnostic code 5256, 5261, or 5262.  Alternatively, a higher rating of 60 percent is assigned where there are residuals consisting of severe painful motion or weakness in the affected extremity. 
In this case, the Veteran underwent a VA examination in November 2015, where the examiner noted that he has intermediate degrees of residual weakness, pain or limitation of motion. He demonstrated 120 degrees of flexion and 0 degrees of extension. The examiner indicated that the Veteran’s range of motion did not contribute to functional loss.  Nor is there evidence of weight bearing. The Veteran’s muscle strength test showed normal muscle strength and no joint instability. The Board finds that this examination reflects a level of impairment contemplated by a 30 percent disability rating. 
The Board notes that the November 2015 VA examination does not comply with the Correia v. McDonald 28 Vet. App. 158 (2016). However, the Veteran’s pain noted during range of motion did not result in functional loss. The evidence does not show severe painful motion or weakness. Therefore, the Board finds a remand to obtain further examination that complies with Correia would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (concluding that remand is unnecessary where it “would result in this Court’s unnecessarily imposing additional burdens on the [Board] with no benefit flowing to the veteran”).  
The Board recognizes that the Veteran’s attorney-representative’s contention that a remand is necessary before the medical evidence of record reflects that the Veteran has swelling and fluid accumulation in the right knee. The Board is sympathic to this contention, however, the rating criteria only contemplates functional loss due to severe painful motion and weakness, which is not reflected by the adequate medical evidence of record. 
Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate a rating higher than 30 percent for right knee disability after April 1, 2016, and the Board is unaware of any such evidence.
In sum, considering all the evidence in the record, a higher rating of 60 percent is not warranted.  The Board is cognizant of the pain reported by the Veteran during his VA exam, but there is no evidence in the record to establish that it rises to the level of severity of a 60 percent rating.  Therefore, the evidence in the record weighs against granting a rating higher than 30 percent for the Veteran’s knee disabilities after he underwent total knee replacement surgery. 
3. Right Ankle 
The Veteran’s right ankle disability is rated as 10 percent disabling under DC 5299-5271. 
Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. When an unlisted disease or injury is encountered, it will be rated by analogy under a DC built up using the first 2 digits from that part of the Rating Schedule most closely identifying the body part or system affected and by using “99” for the last 2 digits.
DC 5271 provides for a 10 percent rating for limitation of ankle motion when moderate, and (a maximum) 20 percent rating when marked. 38 C.F.R. § 4.71a. Normal ranges of ankle motions are 0 to 20 degrees for dorsiflexion and 0 to 45 degrees for plantar flexion. 38 C.F.R. § 4.71a, Plate II. 
VA must also analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss. DeLuca v. Brown, 8 Vet. App. 202 (1995). However, pain that does not result in additional functional loss does not warrant a higher rating. Mitchell v. Shinseki, 25 Vet. App. 32 (2011).
Here, a November 2015 VA examination reflects that the Veteran’s ankle disability results in constant pain, which was rated as 1 to 4 out of 10.  The range of motion test noted a dorsiflexion from 0 to 15 degrees, and plantar flexion from 0 to 45 degrees.  There was no additional functional loss after repetitive use test.  The muscle strength test found normal strength. Similarly, during a November 2011 VA examination, the Veteran had right ankle plantar flexion limited to 40 degrees with pain starting at that point, and right ankle dorsiflexion limited to 15 degrees with objective evidence of painful motion beginning at that point. The examination report shows that the Veteran was unable to perform repetitive use test. The Veteran did not report flare-ups. The Veteran had normal muscle strength during this test.  Based on this evidence, the Veteran’s range of motion, at worst,  was only 5 degrees less than the normal range of motion even after repetitive use. Therefore, the Board finds that the Veteran’s ankle disability results in moderate limitation of motion, which is consistent with a 10 percent disability rating, but not higher.  
Notably, there are other DCs providing for ratings higher than 10 percent for ankle disability. However, DC 5270, 5272, 5273, 5274 all require pathology not shown in this case (i.e., ankylosis, malunion, astragalectomy). 38 C.F.R. § 4.71a.
Effective Date
The Veteran is seeking an effective date earlier than August 6, 2012 for a 50 percent disability rating assigned to his service-connected maxillary sinusitis.
Section 5110(a), Title 38, United States Code, provides that “[u]nless specifically provided otherwise in this chapter, the effective date of an award based on an original claim... of compensation... shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” The implementing regulation, 38 C.F.R. § 3.400, similarly states that the effective date of service connection “will be the date of receipt of the claim or the date entitlement arose, whichever is the later.” 
Previously, the VA administrative claims process recognized formal and informal claims. A formal claim is one that has been filed in the form prescribed by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151 (a). An informal claim may be any communication or action indicating intent to apply for one or more benefits under VA law. Thomas v. Principi, 16 Vet. App. 197 (2002); 38 C.F.R. §§ 3.1 (p), 3.155(a). An informal claim must be written and it must identify the benefit being sought.
Although a claimant need not identify the benefit sought “with specificity,” some intent on the part of the veteran to seek benefits must be demonstrated. VA has a duty to fully and sympathetically develop a veteran’s claim to its optimum. Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). This duty requires VA to “determine all potential claims raised by the evidence, applying all relevant laws and regulations,” and extends to giving a sympathetic reading to all pro se pleadings of record.
In this case, the Veteran filed a claim for increase rating in November 3, 2010 seeking “increase in pension, compensation.” The Regional Office has interpreted this statement as a claim for increase rating for his service-connected maxillary sinusitis. See October 2011 VCAA Letter.  In November 2011, the Veteran underwent a VA examination, where the examiner found that the Veteran’s sinusitis has resolved with no residuals. On the other hand, a December 2012 VA examination reflects that the Veteran has near constant maxillary sinusitis manifested by headaches, pain and purulent discharge or crusting, which is consistent with a 50 percent rating under DC 6514. 
In a brief submitted in May 2018, the Veteran’s representative contends that the November 2011 examination is inadequate because the examiner did not address the Veteran’s reported headaches, which were symptoms of sinusitis. The Board agrees that the November 2011 examination did not adequately address whether the Veteran’s headaches were symptoms of his sinusitis. Therefore, the November 2011 VA examination is inadequate and did not accurately reflect the Veteran’s disability picture.  Resolving the benefit of the doubt in the Veteran’s favor, the Board finds that the competent and adequate medical evidence of record does not reflect that there has been a change in the severity of the Veteran’s sinusitis since the claim was filed in November 3, 2010. In sum, the Board finds that the appropriate effective date for the 50 percent disability rating for maxillary sinusitis is November 3, 2010. 
Service Connection
The Veteran is seeking service connection for his tinnitus. 
Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).
Tinnitus is “a noise in the ear, such as ringing, buzzing, roaring, or clicking.” See Dorland’s Illustrated Medical Dictionary 1956 (31st ed. 2007). Because of its inherently subjective nature, a layman such as the Veteran is considered competent to report the observable manifestations of tinnitus. See Charles v. Principi, 16 Vet. App. 370 (2002) (holding that tinnitus is subjective and the kind of condition lay testimony is competent to describe). Therefore, the Veteran’s report of current tinnitus, which the Board finds credible, is sufficient to establish a current disability. See November 2013 VA examination.  
Service treatment records are negative for any complaints, treatment or diagnoses of tinnitus during service. However, the Veteran has stated that he has experienced tinnitus ever since his military service. See November 2013 VA examination. The Board finds the Veteran’s statement credible and highly probative. Therefore, the second element of a service connection claim, in-service incident, is satisfied. 
Tinnitus is an organic disease of the nervous system and therefore a chronic disease. Fountain v. McDonald, 27 Vet. App. 258, 272 (2015). Service connection is available for tinnitus based on a continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013); 38 C.F.R. § 3.307, 3.309 (2016). Here, the Veteran has provided competent and credible evidence regarding continuity from incurrence of the tinnitus in service to the present. Therefore, service connection is granted.
REMANDED ISSUES
The Board regrets further delay, but additional development is necessary before adjudicating the remaining claim. 
A.	Lumbar 
In a December 2015 nexus opinion, the examiner concluded that the Veteran’s lower back condition is less likely than not related to his military service. The examiner reasoned that the Veteran’s service treatment records (STR) are silent for recurring lower back complaint. The examiner noted that the Veteran was seen for low back pain after a car accident in service, but found that there was no repeated visit concerning his back. The Board finds this opinion inadequate because the examiner does not explain whether the complaint of back pain, even if not recurrent, is related to his current condition. Therefore, a remand is necessary to obtain another opinion.    
B.	Cervical Spine and Sleep Apnea 
A private treatment record from August 2010 reflects that the Veteran has a diagnosis of cervicalgia. With respect to the Veteran’s claim for servie connection for sleep apnea, the Veteran’s STR reflect that he reported snoring and sleep apnea in January 1996. The Board cannot make a fully-informed decision on these issues of service connection for neck disability and sleep apnea because no VA examiner has opined whether these conditions are related to his military service. 
 
C.	TDIU
As to TDIU, this issue is intertwined with the claims for service connection and initial higher ratings, and must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two claims are “inextricably intertwined” when they are so closely tied together that a final decision on one claim cannot be rendered until a decision on the other).
The matters are REMANDED for the following action:
1. Update VA medical records. 
2. After completion of directive #1, schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology back disability. The Veteran’s claims file must be made available to the examiner for review. The examiner must take a complete history from the Veteran. All indicated tests and studies should be completed. 
Following the completion of the examination, the examiner must provide an opinion answering the following question: 
Is the Veteran’s back disability at least as likely as not (50 percent or greater probability) caused by the Veteran’s military service?
Although the examiner should review the claims file in its entirety, his/her attention is drawn to the Veteran’s service treatment record documenting treatment for back problems in April 1979 and September 1982. 
A complete rationale should be provided for all opinions. If an opinion cannot be provided without resorting to speculation, the examiners must explain why this is the case.
3. After completion of directive #1, schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology neck disability. The Veteran’s claims file must be made available to the examiner for review. The examiner must take a complete history from the Veteran. All indicated tests and studies should be completed. 
Following the completion of the examination, the examiner must provide an opinion answering the following question: 
Is the Veteran’s neck disability at least as likely as not (50 percent or greater probability) caused by his military service?
A complete rationale should be provided for all opinions. If an opinion cannot be provided without resorting to speculation, the examiners must explain why this is the case.
4. After completion of directive #1, schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology sleep apnea. The Veteran’s claims file must be made available to the examiner for review. The examiner must take a complete history from the Veteran. All indicated tests and studies should be completed. 
Following the completion of the examination, the examiner must provide an opinion answering the following question: 
Is the Veteran’s sleep apnea at least as likely as not (50 percent or greater probability) caused by his military service?
The examiner is asked to consider and comment on the Veteran’s report of snoring and sleep apnea in January 1996 documented in his Service Treatment Records. 
A complete rationale should be provided for all opinions. If an opinion cannot be provided without resorting to speculation, the examiners must explain why this is the case.
 
5. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably interwind issue of 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.

 
Nathaniel J. Doan
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	S.SOLOMON