Citation Nr: 18147530 Decision Date: 11/06/18 Archive Date: 11/05/18 DOCKET NO. 16-10 866 DATE: November 6, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to a rating of 50 percent for tension headaches, residual of fractured right zygomatic maxillary complex prior to December 20, 2017 is granted, subject to controlling regulations governing the payment of monetary benefits. Entitlement to a 100 percent rating for posttraumatic stress disorder (PTSD) prior to December 19, 2016 is granted, subject to the regulations governing the award of monetary benefits. Entitlement to special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114 (s) from December 26, 2013 is granted, subject to controlling regulations governing the payment of monetary benefits. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is dismissed as moot. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. The Veteran does not have bilateral hearing loss which was incurred in or otherwise related to his active service. 2. Prior to December 20, 2017, the evidence is evenly balanced as to whether the symptoms of the Veteran’s tension headaches have more nearly approximated very frequent completely prostrating and prolonged attacks capable of producing severe economic inadaptability. 3. Prior to December 19, 2016, the Veteran’s service-connected PTSD symptoms and overall impairment have more nearly approximated total occupational and social impairment. 4. From December 26, 2013, the Veteran had a service connected disability rated as total and additional service connected disabilities independently ratable at 60 percent or more. 5. The issue of entitlement to TDIU is moot. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.101 (2017). CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. Resolving reasonable doubt in the Veteran’s favor, prior to December 20, 2017, the criteria for a 50 percent rating for tension headaches, residual of fractured right zygomatic maxillary complex have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.124a, Diagnostic Code 8100. 3. Prior to December 19, 2016, the criteria for a 100 percent disability rating for PTSD have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). 4. From December 26, 2013, the criteria for SMC pursuant to 38 U.S.C. § 1114 (s) have been met. 38 U.S.C. § 1114 (s) (2012); 38 C.F.R. § 3.352. 5. The issue of entitlement to TDIU is moot. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.101 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1988 to September 1991. This matter came to the Board of Veterans’ Appeals (Board) on appeal from November 2014, March 2015, and December 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In the November 2014 rating decision, the RO, inter alia, determined that an increased rating was not warranted for the Veteran’s PTSD, and continued the 70 percent disability rating. In August 2015, the Veteran disagreed with the RO’s determination. However, the RO did not issue a statement of the case. Therefore, the November 2014 decision did not become final. In a January 2017 rating decision, the RO increased the rating for PTSD to 100 percent, effective December 19, 2016. In a notice of disagreement received in March 2017, the Veteran asserted that an earlier effective date for the assignment of a 100 percent rating for his PTSD was warranted. As noted, in August 2015, the Veteran filed a notice of disagreement with the November 2014 rating decision. It appears, in relevant part, that the Veteran’s initial notice of disagreement stems from the rating assigned for his service-connected PTSD. Therefore, the Board has recharacterized the issue on the title page, as the Veteran’s claim for an earlier effective date for a 100 percent rating for PTSD is more properly characterized as a claim for an increased rating for the earlier portion of the rating period on appeal. Thus, additional development is not required. The January 2017 rating decision also determined that its failure to assign special monthly compensation (SMC) on loss of us of a creative organ was a clear and unmistakable error, and retroactively assigned entitlement to SMC, effective July 3, 2015. The grant of SMC constitutes a full award of the benefits sought on appeal with respect to the issue of entitlement to SMC for erectile dysfunction. The record currently available to the Board contains no indication that the Veteran has disagreed with the initial rating or effective date assigned; therefore, those matters are not in appellate status. In a January 2018 rating decision, the RO increased the rating for tension headaches to 50 percent, effective December 20, 2017. Although a higher disability rating was granted for tension headaches, the issue remains in appellate status, as the maximum schedular rating was not assigned from the effective date of the award of service connection. AB v. Brown, 6 Vet. App. 35, 38 (1993). In a September 2017 decision, the Board denied service connection for left lingual nerve damage, a rating in excess of 30 percent for tension headaches, and a rating in excess of 10 percent for partial paralysis of the fifth cranial nerve. A Joint Motion for Partial Remand (JMPR) was filed at the United States Court of Appeals for Veterans Claims (Court), on the basis that the March 2015 VA examination report was inadequate. On June 11, 2018, the Court granted the motion, vacated that part of the Board’s September 2017 decision which denied a rating in excess of 30 percent for tension headaches, and remanded the case to the Board for action consistent with the JMPR. Although the JMPR found the March 2015 VA examination inadequate, the evidence of record, however, contains sufficient evidence to establish the benefit sought on appeal. Thus, the case may proceed to adjudication. 1. Entitlement to service connection for bilateral hearing loss Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain diseases, organic disease of the nervous system such as sensorineural hearing loss, may be also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from active service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307 (a). In addition to the criteria set forth above, service connection for impaired hearing is subject to the additional requirement of 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability only if at least one of the thresholds for the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of the frequencies are greater than 25 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. See also Hensley v. Brown, 5 Vet. App. 155 (1993). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107 (b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b). The Veteran seeks service connection for bilateral hearing loss. He contends that such disability is due to his military service. For the following reasons, the Board finds that the preponderance of the evidence is against the claim. In this case, service treatment records are negative for complaints or treatment of hearing loss. In August 1991, the Veteran waived a separation medical examination. Post-service clinical records are similarly negative of complaints, treatment, and diagnosis of bilateral hearing loss. In July 2012, the Veteran underwent a VA examination. An audiological evaluation showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 20 10 15 25 LEFT 10 10 0 5 20 Speech discrimination testing using the Maryland CNC word list was 100 percent in both ears. The examiner concluded there was no hearing loss present and noted the Veteran’s bilateral hearing as clinically normal. In November 2015, the Veteran was afforded a VA medical examination. The examiner determined that no hearing loss was present. The examiner opined that it is less likely than not that the Veteran’s hearing loss was caused by his military service, as his hearing is within normal limits bilaterally. The examiner explained that she spoke with the Veteran who agreed his hearing loss was normal. The Veteran has therefore not met his burden of showing that he has a current bilateral hearing loss disability for VA purposes. The current disability element of a service connection claim may be defined broadly, see 38 U.S.C. § 1701 (1) (“The term ‘disability’ means a disease, injury, or any other physical or mental defect”), and need not be shown at the time of the Board decision. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board’s adjudication of the claim; Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (Board erred in failing to address pre-claim evidence in assessing whether a current disability existed, for purposes of service connection, at the time the claim was filed or during its pendency). Here, however, the evidence of record does not demonstrate that the Veteran has a disability related to bilateral hearing loss at any time during the course of the appeal or approximate thereto. Moreover, the requirements for establishing a hearing loss disability are specifically delineated in 38 C.F.R. § 3.385 and have not been met in this case. The Veteran has thus failed to establish an essential element of this service connection claim. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) (holding that section 1110 of the statute requires the existence of a current disability for VA compensation purposes); 38 U.S.C. § 5107 (a) (a claimant has the responsibility to present and support a claim for VA benefits); Skoczen v. Shinseki, 564 F.3d 1319, 1323 (Fed. Cir. 2009) (the “support” requirement of section 5107(a) obligates the claimant to provide some evidentiary basis for his benefits claim). Based on the foregoing, the preponderance of the evidence is against the claim of entitlement to service connection for bilateral hearing loss. The benefit of the doubt doctrine is therefore not for application, and the claim for service connection for bilateral hearing loss must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Increased Rating 2. Tension Headaches The Veteran seeks a rating in excess of 30 percent prior to December 20, 2017 for tension headaches. He contends that his headaches occurred more frequently than indicated by his VA examination. The Veteran is competent to describe the frequency and severity of his headaches, and the Board agrees that a higher rating is warranted based on these statements. The Veteran’s tension headaches are rated under the provisions of 38 C.F.R. § 4.124a, Diagnostic Code 8100 pertaining to migraine headaches. Under this Diagnostic Code, a 30 percent disability rating is assigned for migraine headaches with characteristic prostrating attacks occurring on an average of once a month over the last several months. A 50 percent rating is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a Diagnostic Code 8100. The rating criteria do not define “prostrating.” VA’s Adjudication Procedures Manual (M21-1), which is not binding on the Board, see DAV v. Sec’y of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017) (“The M21-1 Manual is binding on neither the agency nor tribunals”), defines prostrating under DC 8100 as “causing extreme exhaustion, powerlessness, debilitation or incapacitation with substantial inability to engage in ordinary activities.” See M21-1, pt. III, Subpt. iv, Ch. 4, Sec. G(7)(b). In Pierce v. Principi, 18 Vet. App. 440 (2004), the Court examined the “productive of severe economic inadaptability” criterion for a 50 percent evaluation under DC 8100 and noted that “[n]owhere in the DC is ‘inadaptability’ defined, nor can a definition be found elsewhere in title 38 of the [C.F.R.].” 18 Vet. App. at 446. The Court explained that, contrary to the Secretary’s argument, “nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating” because “[i]f ‘economic inadaptability’ were read to import unemployability,” a claimant who “met the economic-inadaptability criterion, would then be eligible for a rating of total disability based on individual unemployability [(TDIU)] ... rather than just a 50 percent rating.” Id. The Court therefore rejected the notion that “severe economic inadaptability” was equivalent to an inability to secure or follow a substantially gainful occupation, the unemployability standard for TDIU. Id. (citing 38 C.F.R. § 4.16 (a)). In addition, the Court in Pierce acknowledged the Secretary’s concession that the phrase “productive of severe economic inadaptability” in DC 8100 should be construed as either “producing” or “capable of producing” severe economic inadaptability. Id. at 445. Johnson v. Wilkie, No. 16-3808, 2018 U.S. App. Vet. Claims Lexis 1253 (Sept. 19, 2018), the Court held that the criteria of DC 8100 are successive. In a December 2014 VA clinical record, the Veteran reported headaches 1 to 2 times per week. He complained that his headaches were worsening, usually in the evening, and only responded to sleep. In a March 2015 VA clinical record, the Veteran indicated that he continues to have 2 or 3 headaches a week, and lies down in the dark for relief. The Veteran underwent a VA medical examination in March 2015, at which he reported headaches 2 to 3 episodes per week, with the duration of 1 to 2 hours with dizziness. His symptoms were helped by going into a dark room. The examiner concluded that the Veteran had prostrating attacks occurring once in two months. In a July 2016 VA clinical record, the Veteran reported 4 to 5 headache episodes per month, with the duration up to 4 hours, including symptoms of photophobia and phonophobia. He indicated that his headaches were debilitating and he lies down in a dark room when headaches occur. Similarly, in an August 2017 VA clinical record, the Veteran reiterated that he experiences 4 to 5 headache episodes per month, lasting up to four hours, with symptoms of photophobia and phonophobia. In this case, the evidence is at least evenly balanced as to whether the Veteran’s headaches and associated symptoms more closely approximate frequent, completely prostrating headaches with prolonged attacks that are productive of severe economic inadaptability contemplated by a 50 percent schedular rating under DC 8100. The Veteran is competent to report his observable symptoms of headaches occurring between 2 to 5 times per week, with the duration of several hours. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran has also competently and credibly stated that his headaches causes photophobia and phonophobia, and he lies in a dark room when the headaches occur. Given these competent and credible statements, including those indicating that the headaches are debilitating, the Board finds that the evidence is at least evenly balanced as to whether the symptoms of the Veteran’s headaches meet the criteria of very frequent completely prostrating attacks capable of producing severe economic inadaptability. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, a rating of 50 percent prior to December 20, 2017 is warranted for the Veteran’s service-connected tension headaches under DC 8100 which is the maximum schedular rating available under DC 8100. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. The Board has also considered the referral for extraschedular consideration. The evidence of record demonstrates that the Veteran’s tension headache symptomatology does not warrant referral for extraschedular consideration. Here, the rating criteria address the Veteran’s tension headache symptomatology. As described above, the Veteran has chronic headaches that occur at least twice per week, and lasting for hours. The diagnostic criteria include the nature and duration of the headaches and their effect on the Veteran’s economic adaptability. This language is broad enough to encompass all of the symptoms. Thus, the Board finds that the Veteran’s disability picture is contemplated by the rating schedule, and the currently assigned disability rating is appropriate. See Thun v. Peake, 22 Vet. App. at 115 (2008). Accordingly, remand for referral for extraschedular consideration is not warranted. 3. Rating in Excess of 70 Percent Prior to December 19, 2016 for PTSD Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where a claimant appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Where VA’s adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or “staged” ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). The criterion for rating PTSD disorder is contained in the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating is assigned when there is objective evidence demonstrating 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, or 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. A 100 percent rating is warranted when there is 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 and place, memory loss for names of close relatives, own occupation, or own name. In Mauerhan v. Principi, 16 Vet. App. 436 (2002), the U.S. Court of Appeals for Veterans Claims (Court) held that 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. Accordingly, the evidence considered in determining the level of impairment under section 4.130 is not restricted to the symptoms provided in the diagnostic code. Rather, VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders. More recently, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit explained that in the context of a 70 percent rating, section 4.130 “requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” Id. at 118. The Federal Circuit indicated that “[a]lthough the veteran’s symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran’s level of impairment in ‘most areas.” Id. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107 (b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b). On December 26, 2013, the Veteran filed a claim for increased ratings for service-connected PTSD. He contends that the rating currently assigned does not reflect the severity of the disability. For the following reasons, the Board finds that prior to December 19, 2016, the Veteran’s PTSD was manifested by symptoms more nearly approximating total occupational and social impairment. A January 2014 VA clinical record indicates that the Veteran slept 3 to 4 hours a night with multiple awakenings and nightmares 3 to 4 times per week. He reported intrusive thoughts of Desert Storm 3 times per week on average, but sometimes every day. The clinician noted that he was irritable, angry, short-fused, suspicious and uncomfortable in crowds. The Veteran was withdrawn and isolated himself, indicating that he wanted to be left alone. He reported that he felt detached and distant. Problems with concentration and short-term memory was noted. In a May 2014 VA clinical record, the Veteran reported intrusive thoughts, depression, and hopelessness about his future. He reported an increase of feeling keyed up, tense, and hypervigilant in the last few months. He stated that he was having tightness in his chest, in context to apparent panic attacks. The clinician noted that the Veteran could have a quick temper and has had some altercations. He was experiencing nightmares with sweats almost every other day. A November 2014 VA examination note indicates the Veteran denied current active suicidal ideation, plans or intent. There was no evidence of homicidal ideation, or audio and visual hallucinations. VA clinical records show that in September 2015, the Veteran reported that he stayed in and isolates himself, even when his wife wants to go out. He endorsed episodic suicidal ideation and nightmares 2 to 3 nights per week. In May 2016, the Veteran reported intrusive thoughts. He was depressed, unmotivated, and lethargic. The Veteran was volatile and angry, and spoke of several incidents of road rage, as well as some arguments with his wife. He denied any acute or specific stressor. In September 2016, the clinician indicated that the Veteran remains unemployable now due to the severity of his symptoms, especially the depression. The Veteran underwent a VA medical examination in December 2016. The Veteran exhibited symptoms of depression, anxiety, suspiciousness, weekly panic attacks, chronic sleep impairment and flattened affect. There were disturbances of motivation and mood. The Veteran exhibited difficulty in establishing and maintaining effective work and social relationships, as well as, difficulty in adapting to stressful circumstances, including a work like setting. The Veteran has an inability to establish and maintain effective relationships. The Veteran has obsessional rituals which interfere with routine behaviors. He has impaired impulse control, such as unprovoked irritability with periods of violence. The examiner noted that the Veteran was no an imminent risk to harm himself, however, believed that the Veteran should be considered an increased but not current imminent risk. The examiner concluded that the Veteran exhibited occupational and social impairment with deficiencies in most areas. Considering this examination, the RO increased the Veteran’s PTSD to a 100 percent rating. Based on the evidence of record and resolving reasonable doubt in favor of the Veteran, the Board finds that prior to December 19, 2016, the Veteran’s PTSD was manifested by symptoms that more nearly approximate total occupational and social impairment required for 100 percent rating. The Veteran has exhibited symptoms of gross impairment in thought processes. Specifically, VA clinical records dated in January 2014, May 2014, and May 2016 indicate that the Veteran regularly experienced intrusive thoughts. The Veteran stayed inside and isolated himself; even when his wife wanted to go out. The Veteran’s irritability, anger, short-fuse and suspiciousness were noted in January 2014 and May 2016 VA clinical records. The May 2014 and May 2016 VA clinical records note the Veteran’s anger and volatility, leading to altercations, several incidents of road rage, and arguments with his wife. Notably, the May 2016 clinician indicated that the Veteran denied any acute or specific stressor. Additionally, the September 2016 clinician indicated that the Veteran remains unemployable now due to the severity of his symptoms, especially the depression. Furthermore, there is a lack of evidence showing that the Veteran’s PTSD symptoms suddenly became worse on the date of the December 2016 VA examination. The above evidence including the competent and credible lay statements from the Veteran and the medical records reflects that the evidence is at least evenly balanced as to whether the Veteran’s PTSD symptoms and impairment more nearly approximate the total occupational and social impairment required for a 100 percent rating. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a 100 percent rating for PTSD prior to December 19, 2016, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 4. SMC Pursuant to 38 U.S.C. § 1114 (s), when a veteran has a service-connected disability rated as total and has additional service-connected disability independently ratable at 60 percent or more, he is entitled to SMC. 38 U.S.C. § 1114 (s)(1). The Court has held that VA has a “well-established” duty to maximize a claimant’s benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB, 6 Vet. App. at 35; see also Bradley, 22 Vet. App. at 280. This duty to maximize benefits requires VA to assess all of a claimant’s disabilities to determine whether any combination of disabilities establishes entitlement to SMC under 38 U.S.C. § 1114. See Bradley, 22 Vet. App. at 280 (finding that SMC “benefits are to be accorded when a Veteran becomes eligible without need for a separate claim”). In the decision above, the Board has granted a 100 percent rating for PTSD from December 26, 2013 to December 19, 2016. He also has additional disability rated 60 percent or more, as he is in receipt of service connection for headaches now rated 50 percent, tinnitus rated 10 percent, and erectile dysfunction rated 10 percent. As the Veteran now meets the statutory criteria for SMC pursuant to 38 U.S.C. § 1114 (s) during this period, entitlement to SMC is warranted from December 26, 2013. 5. TDIU A TDIU may be assigned “where the schedular rating is less than total” and the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16 (a). As the Board is granting a 100 percent rating for PTSD from December 26, 2013, there remains no time during the period on appeal where the schedular rating is “less than total,” as required for a TDIU. See 38 C.F.R. § 4.16 (a). The Board is cognizant of the fact that the receipt of a 100 percent schedular disability rating for a service-connected disability or disabilities does not necessarily moot the issue of entitlement to a TDIU because a TDIU rating may still form the basis for assignment of SMC pursuant to 38 U.S.C. § 1114 (s). See Bradley, 22 Vet. App. at 280. In this case, however, the Board is already awarding SMC pursuant to 38 U.S.C. § 1114 (s) from December 26, 2013. For this reason, the issue of entitlement to a TDIU at any time during the appeal is now rendered moot, leaving no question of law or fact to decide regarding the TDIU issue during this period. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 4.14, 4.16. In consideration thereof, the Board finds that the issue of entitlement to a TDIU must be dismissed as moot. REASONS FOR REMAND 1. Sleep Apnea The Veteran asserts entitlement to service connection for sleep apnea, claiming that it is secondary to his service-connected PTSD. For the reasons set forth below, the Board finds that a remand for additional evidentiary development is required. In a January 2017 VA medical opinion, the examiner concluded that the Veteran’s sleep apnea is less likely than not proximately due to or the result of service-connected PTSD. The examiner explained that review of evidence-based medical literature does not support a contention of sleep apnea being caused by PTSD. Association does not indicate causality. The examiner further explained that the Veteran has several well-established clinically significant risk factors for developing sleep apnea, including, but not limited to his age greater than 35 (Veteran was 49 at initial diagnosis), male gender, overweight, with upper airway abnormalities (Mallampati 3 with enlarged tongue). The examiner noted that these are the most likely cause of this sleep apnea individually, or in combination. The examiner further opined that there was no documentation of aggravation beyond the expected natural progression. In November 2016, the Veteran submitted articles “Posttraumatic Stress Disorder” and “Obstructive Sleep Apnea and PTSD.” In March 2017, the Veteran submitted another article, “Association of Psychiatric Disorders and Sleep Apnea in a Large Cohort.” The articles indicate a positive association between psychiatric disorders and sleep apnea. The Board, therefore, finds January 2017 VA opinion flawed, as it is factually inaccurate. The opinion is therefore of no probative weight. Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely) (citing Reonal v. Brown, 5 Vet. App. 458, 461 (1993)). Similar studies have been noted by the Court in memorandum decisions and by the Board in decisions in other cases. As a result, the VA medical opinion on secondary causation is inadequate. There are no other opinions on this question. A remand is therefore required to ensure VA has fulfilled its duty to assist. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In light of the foregoing, a new opinion by an appropriate specialist VA physician should be obtained. The matter is REMANDED for the following action: 1. Request an opinion from an appropriate specialist physician to determine the nature and etiology of the Veteran’s sleep apnea. The physician should review the claims file prior to rendering the opinion. The physician should answer the following questions: (a) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s sleep apnea was caused by his service-connected PTSD? (b) Is it at least as likely as (i.e., a 50 percent or greater probability) that the Veteran’s sleep apnea disability has been aggravated by his service-connected PTSD? In providing the opinion regarding secondary relationship between the current sleep apnea and PTSD, the VA physician is requested to discuss the significance of the November 2016 articles associating sleep apnea with PTSD, and the March 2017 article that noted sleep apnea is associated with a higher prevalence of psychiatric comorbid conditions in Veterans Health Administration beneficiaries, as well as any other relevant medical literature on this question. If aggravation is found, please identify the baseline level of disability prior to aggravation, to the extent possible. A complete rationale should accompany any opinion provided. The physician is advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account in formulating the requested opinions. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Walker, Associate Counsel