Citation Nr: 18149957 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 12-01 712 DATE: November 14, 2018 REMANDED Entitlement to a disability rating exceeding 70 percent for service-connected mental disabilities beginning June 1, 2013 is remanded. Entitlement to service connection for a sleep disorder to include as secondary to service-connected disabilities is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1988 to December 1991. This appeal comes to the Board of Veterans’ Appeals (Board) from May 2010, February 2012, and January 2014 rating decisions and by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded these matters in October 2014 and August 2018 for additional development. The claims were recently denied again by the AOJ in a September 2018 Supplemental Statement of the Case. In support of the denials, the Agency of Original Jurisdiction (AOJ) noted the Veteran did not attend a scheduled VA examination and that the record did not establish there was good cause for missing the examination. However, the Board notes that the examination in question was scheduled prior to the Board’s recent decision on August 29, 2018. It was intended to address the Veteran’s sleep disorder and TDIU claims and not the claim for an increased disability rating for mental disabilities. The August 2018 Board decision focused on the increased rating claim, and the Board found cause to remand the matter to the AOJ to afford to the Veteran an examination of the current severity of his service-connected mental disabilities separate from symptoms of a traumatic brain injury, which is not service connected. Following the remand, the Board finds no compelling evidence that the AOJ afforded the Veteran a reasonable opportunity to attend another VA examination prior to denying the claims. Therefore, remand is required to ensure there is substantial compliance with the Board’s prior remand directives. As the issues on appeal are intertwined, the Board finds that they should be considered together in the first instance by the AOJ after necessary development is complete. The matters are REMANDED for the following action: 1. The AOJ should contact the Veteran and all current representatives and request their assistance in identifying any outstanding relevant records. The AOJ should make reasonable attempts to obtain all identified outstanding records and associate them with the Veteran’s claims file. 2. After associating all outstanding records with the Veteran’s claims file, the AOJ should afford the Veteran an examination with an appropriate examiner(s) of the Veteran’s service-connected mental disabilities and his claimed sleep disorder. The AOJ should provide the examiner(s) with a complete copy of the claims file to include this remand order. The AOJ should ensure that the examiner(s) follows these directives: (a) The VA examiner(s) should carefully assess the current severity of the Veteran’s service-connected mental disabilities (e.g. major depression, PTSD, adjustment disorder with mixed emotional features) as separate from any residual symptoms of his 2015 post-service motorcycle accident. The examiner(s) 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. If the examiner(s) is unable to distinguish the symptomatology, the examiner(s) should so state in the report. (b) After assessing the current severity of the Veteran’s service-connected mental disabilities, the VA examiner(s) should identify all current disabilities associated with the Veteran’s claimed sleep disorder. (c) For each current disability identified, the examiner(s) should opine whether the disability was at least as likely as not (50 percent or greater probability) caused by the Veteran’s military service. The examiner(s) should explain why or why not. (d) For each current disability identified, the examiner(s) should opine whether the disability was at least as likely as not permanently worsened beyond normal progression (aggravated) by the Veteran’s service-connected disabilities to include his mental disabilities. 3. If the examiner(s) is unable to provide an opinion on these matters, the examiner(s) must state whether the inability to render an opinion is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner(s) (does not have the knowledge or training). 4. After completing the above action and any other necessary development, the claims must be readjudicated. If a claim remains denied, a Supplemental Statement of the Case must be provided to the Veteran and current representatives. After the Veteran has had adequate opportunity to respond, the appeal must be returned to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Duffy, Associate Counsel