Citation Nr: 18157078 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 16-41 066 DATE: December 11, 2018 REMAND Entitlement to service connection for a sleep condition, to include sleep apnea, is remanded. Entitlement to an initial rating in excess of 50 percent for major depressive disorder is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Marine Corps from April 1975 to March 1979. The matters are before the Board of Veterans’ Appeals (Board) on appeal from August 2013 and June 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Board acknowledges that in correspondence received in October 2018, the Veteran attempted to opt into the Rapid Appeals Modernization Program (RAMP); however, the request was received at a time when the appeals for these issues were no longer eligible for RAMP opt-in. Therefore, these appeals will be processed through regular appeal processing procedures. 1. Entitlement to service connection for a sleep condition and an initial increased rating for major depressive disorder are remanded. The American Legion represented the Veteran at the issuance of the August 2013 and June 2015 rating decisions. In correspondence dated in September 2015, the Veteran withdrew representation by the American Legion and expressly indicated that he wished to represent himself. The Veteran proceeded in his appeals unrepresented. Subsequently, in May 2018, the Veteran submitted a VA Form 21-22, Appointment of Veteran’s Service Organization as Claimant's Representative, for the North Carolina Division of Veterans Affairs to be his current representative. To date, the North Carolina Division of Veterans Affairs has not been afforded the opportunity to submit a VA Form 646, Statement of Accredited Representative in Appealed Case, or its equivalent, on the Veteran's behalf regarding his claims on appeal. The purpose of such statement is to give a claimant's representative the opportunity to review the appeal and submit a statement regarding the appeal prior to certification to the Board. In the interest of due process and because the Veteran was previously unrepresented, the Veteran’s representative should be afforded the opportunity to review and address the issues on appeal. On remand, the North Carolina Division of Veterans Affairs must be given full opportunity to review the claims file and submit evidence and/or argument in support of the Veteran's claims on appeal. See 38 C.F.R. § 20.600. Further, regarding the appeal seeking an increased rating for major depressive disorder, the Veteran was last examined in May 2015. Subsequent VA treatment records reflect a potential worsening of the symptoms of the disability, including a March 2017 VA treatment record which reflects the Veteran reported having recent passive suicidal ideation. Such symptoms were not noted on the May 2015 VA examination. As such, a VA examination should be completed on remand to assess the current severity of the Veteran’s psychiatric disability. Additionally, regarding the claim seeking service connection for a sleep condition, the Veteran alleges that he has a sleep condition that is due to his service-connected bilateral knee disabilities. In October 2013, he submitted an opinion from Dr. H.J. that indicated that he had a sleep disorder due to knee pain. Dr. H.J. did not provide a rationale in support of this conclusion; therefore, the opinion is inadequate for rating purposes. However, as it indicates that the Veteran’s sleep condition may be secondary to his service-connected bilateral knee disabilities, remand for an examination with an etiology opinion is needed. 2. Entitlement to TDIU is remanded. The Veteran raised a claim for TDIU by filing a September 2015 VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. The Veteran has attributed his unemployment or marginal employment as due to his major depressive disorder. The issue of entitlement to TDIU is inextricably intertwined with the appeal seeking an increased rating for major depressive disorder. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (holding that a claim for TDIU, either expressly raised by the appellant or reasonably raised by the record, is part of the claim for an increased rating). Therefore, the Agency of Original Jurisdiction (AOJ) should take appropriate steps to develop and adjudicate the claim for TDIU in light of all the evidence of record. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period of April 2018 to the present. Contact the Veteran and afford him the opportunity to identify or submit any pertinent evidence in support of his claim, to include any records of any private treatment, specifically from the Veteran’s private primary care physician, Dr. H.J. Based on his response, attempt to procure copies of all records which have not been obtained from identified treatment sources. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any sleep disorder, to include sleep apnea. The examiner must opine as to the following: A) Determine the diagnoses of any sleep disorders that have been present during the appeal period, including sleep apnea). B) For any diagnosed sleep disorder, including sleep apnea, is it at least as likely as not that such disorder is caused by the service-connected bilateral knee disability and/or psychiatric disability? C) For any diagnosed sleep disorder, including sleep apnea, is it at least as likely as not that such disorder is aggravated beyond its natural progression (i.e., any worsening of the condition beyond its natural progression) by the service-connected bilateral knee disability and/or psychiatric disability? A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. 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. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his major depressive disorder alone. 4. After any further development is completed, and in light of any determinations made on the increased rating issue, adjudicate the Veteran’s claim for TDIU. 5. Provide the Veteran's representative, North Carolina Division of Veterans Affairs, with an opportunity to complete a VA Form 646, Statement of Accredited Representative in Appealed Case, or equivalent, submitting any additional evidence and/or argument in support of the claims on appeal. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K Pak, Associate Counsel