Citation Nr: 1809331 Decision Date: 02/15/18 Archive Date: 02/27/18 DOCKET NO. 12-31 507A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether the reduction of the Veteran's compensation benefits to the 10 percent rate due to incarceration was proper. 2. Entitlement to service connection for obstructive sleep apnea (OSA). 3. Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to July 27, 2015. 4. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) prior to July 27, 2015. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Henry, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1993 to September 1995. These matters come before the Board of Veterans' Appeals (Board) on appeal from October 2009 and August 2010 rating decisions and a January 2012 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). A November 2015 rating decision issued by the RO granted an increase of 100 percent for posttraumatic stress disorder (PTSD) effective July 27, 2015. As such, the issue before the Board is entitlement to an initial rating in excess of 30 percent for PTSD prior to July 27, 2015. A September 2017 rating decision granted service connection for the Veteran's left and right knee patellofemoral pain syndrome, for erectile dysfunction with testicular pain (claimed as testicular torsion). Therefore, those issues are not before the Board. Grantham v. Brown, 114 F.3d 116 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). The issue of OSA is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran had been incarcerated at a state correctional facility for a felony conviction during which his compensation was reduced to 10 percent. 2. Prior to July 27, 2015, after resolving reasonable doubt in favor of the Veteran, his PTSD symptomatology more nearly approximated occupational and social impairment with deficiencies in most areas, but total occupational and social impairment has not been shown. 3. Prior to July 27, 2015, the Veteran's service-connected disabilities met the schedular criteria under 38 C.F.R. § 4.16(a). CONCLUSIONS OF LAW 1. Reduction of the Veteran's VA compensation benefits to 10 percent due to his incarceration was proper. 38 U.S.C. § 5313 (2012); 38 C.F.R. § 3.665 (2017). 2. Prior to July 25, 2015, the criteria for a disability rating of 70 percent for PTSD, but no higher, were met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130 Diagnostic Code 9411 (2017). 3. Prior to July 25, 2015, the criteria for entitlement to TDIU were met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veteran's Claim Assistance Act of 2000 (VCAA) VA has a duty to notify and assist veterans in substantiating claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran and his representative have not raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). II. Reduction Due to Incarceration In October 2010, VA notified the Veteran that his benefit payments would be reduced due to his incarceration. In his October 2010 Statement in Support of Claim, the Veteran contested the reduction of his compensation benefits to 10 percent during his incarceration stating that even though he was incarcerated, he still had to financially provide for his children. The Board is bound by the laws and regulations that apply to veterans' claims. 38 U.S.C. § 7104(c) (2012); 38 C.F.R. §§ 19.5, 20.101(a) (2017). Those laws and regulations provide that a veteran who is incarcerated in a Federal, State, or Local penal institution in excess of 60 days for conviction of a felony committed after October 7, 1980, and who has a combined rating of 20 percent or more shall not be paid compensation in excess of the amount payable for a disability evaluated as 10 percent disabling beginning on the 61st day of incarceration. 38 U.S.C. § 5313; 38 C.F.R. § 3.665. The evidence reflects that in January 8, 2010, the Veteran was incarcerated at a state penal institution for a felony. See October 2010 Report of Incarceration. The RO reduced the Veteran's VA disability compensation to 10 percent effective March 10, 2010, which was in excess of 60 days of the Veteran's confinement. The U.S. Court of Appeals for Veterans Claims (Court) has held that the plain meaning of the statute indicates that not only is compensation above the level of 10 percent to be withheld during a Veteran's incarceration, VA is not obliged to pay the amount once the Veteran's incarceration has ended, and the Court declined to pass on the constitutionality of the statute. See Shephard v. Shinseki, 26 Vet. App. 159 (2013). Given that the law is clear that the reduction of the Veteran's benefit to 10 percent is proper because of his incarceration, his claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). III. Increased Rating A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. The rating criteria provide that a 30 percent evaluation is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal) due to such symptoms as: depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent evaluation is warranted for 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 (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing effective work and social relationships. Id. A 70 percent evaluation is warranted for 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 evaluation 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. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. 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). A GAF (Global Assessment of Functioning) score is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994). This is more commonly referred to as DSM-IV. A GAF of 41 to 50 is indicative of serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF of 51 to 60 is defined as moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). A GAF of 61 to 70 is indicative of mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. The Board notes that an examiner's classification of the level of psychiatric impairment by a GAF score is to be considered, but is not determinative of the percentage rating to be assigned. VAOPGCPREC 10-95. Effective March 19, 2015, VA amended the portion of the Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations to remove outdated references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), and replaced them with references to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). See 80 Fed. Reg. 53, 14308 (March 19, 2015). The provisions of the final rule apply to all applications for benefits that are received by VA or that were pending before the Agency of Original Jurisdiction on or after August 4, 2014. As the Veteran's claim was pending before this date, the amendment is not applicable. In January 2009, the Veteran filed his claim for an increase. The Veteran asserts that his disability is more severe than the 30 percent rating depicts. See Statement in Support of Claim entered in Caseflow Reader in January 2009. Taking into account all relevant evidence, the Board finds that an initial evaluation in excess of 30 percent for the Veteran's service-connected PTSD is not warranted. In May 2009, the Veteran was afforded a VA examination to determine the severity of his PTSD. The examiner reviewed the Veteran's claims file and performed an in-person examination. The Veteran stated that he was more depressed than he used to be, and his dreams were bothering him. The examiner noted that the Veteran began using marijuana and cocaine as a teenager and began drinking alcohol at age 12. The Veteran stated that sometimes when he drank too much, he wanted to give up and felt suicidal. The Veteran stated that he felt depressed and guilty sometimes when he stopped drinking. He felt guilty about not being the father that he could be and about the way his life had been going. He reported some passive suicidal ideation during these periods, but he denied any plan or intent to harm himself. He reported having friends, however, had not been able to maintain work nor an intimate relationship with others. The examiner noted that the Veteran presented wearing an unusual T-shirt or sweater. It had big letters, "Heavy Drinker, John 7:37." On the back of the sweat shirt were the words, "If Any Man Thirst, Let Him Come unto Me and drink." He appeared to have a euthymic mood, and his affect was somewhat constricted. He was cooperative and talkative. His motor activity and speech were unremarkable. The Veteran described his mood as "I feel pretty good. I am a little groggy. I had 5 beers on the way over here. I was hung over when I woke up." The Veteran's affect was appropriate, and he did not appear to exhibit any dysphoria or other signs of being troubled when discussing traumatic and tragic occurrences from his past. His range of affect was relatively stable. His thought process was logical, coherent, and goal-directed. The content of his thought was positive for some passive suicidal ideation. The Veteran was alert, oriented, and free of confusion. He had difficulty counting backwards by sevens, but was able to do it quite slowly. He registered three objects and recalled two of the three after a brief delay. He knew the last three presidents. His insight and judgment appeared marginal. His interest level did not appear impaired. He did not exhibit psychomotor retardation. There were no symptoms of mania or hypomania. He reported no symptoms of panic disorder or obsessive compulsive disorder. The Veteran denied homicidal ideation and psychotic symptoms. He did report that he was moody and somewhat irritable. He was clearly dependent physiologically on alcohol, and he was also very vulnerable to resume using Crack Cocaine. The examiner stated that it appeared the depression symptoms may very well be substance-induced, and also, the anxiety symptoms may well be at least in part induced by the Veteran's drinking and other drug abuse. The examiner opined that the Veteran's depressive symptoms and substance abuse pattern are both independent of his reported PTSD symptoms. Because of his substance abuse problem, the examiner stated that the Veteran was not competent to handle his finances. The examiner diagnosed the Veteran with anxiety disorder not otherwise specified with reported symptoms of PTSD. The examiner assigned a GAF score of 55. In November 2009 while in prison, the Veteran was evaluated by NaphCare. See Medical Treatment Record-Non-Government Facility entered in Caseflow Reader in September 2012. The examiner noted that the Veteran was oriented to person, place, time, and situation. His affect was full. He was alert and his speech was clear. The Veteran did not experience hallucinations. His attention and short and long-term and immediate memories were intact. See id. at 10. The Veteran's insight was good and eye contact was normal. See id. During the evaluation, the Veteran denied suicidal, homicidal, and aggressive ideations. See id. at 8. The examiner noted that the Veteran's affect and mood were appropriate, calm, and cooperative. See id. at 13. The examiner confirmed the Veteran's PTSD diagnosis and assigned a GAF score of 60. See id. at 10. In May 2010, the Veteran's symptoms included problems sleeping. See id. at 11. The Veteran's affect and mood were appropriate, calm, and cooperative, and he made good eye contact. His verbal tone was good and thoughts clear and organized. See id. In December 2010, January and February 2011, the Veteran was seen at the Correctional Managed Care: Mental Health Outpatient Clinic Note. See Medical Treatment Record-Non-Government Facility entered in Caseflow Reader in September 2012, p. 40, 53 and 59. In December, the Veteran stated that he experienced bad dreams, woke up and saw people. See id. at 59. For all months, the Veteran was appropriately groomed and had fair hygiene. He was oriented times three. He was polite and cooperative. His speech was clear, coherent, and spontaneous. His thought process was intact, logical, and linear. His thought content was appropriate to situation. There were no distortions to the Veteran's perception. He did not appear to attend to internal stimuli. His memory was intact. His mood was euthymic and affect was congruent to his mood. The Veteran denied suicidal and homicidal ideations. His impulse control and insight and judgment were fair. The examiner confirmed the PTSD diagnosis. See id. at 40 and 53. In March, April, and November 2011, the Veteran was seen at the Correctional Managed Care: Mental Health Outpatient Clinic Note. See Medical Treatment Record-Non-Government Facility entered in Caseflow Reader in September 2012, p. 18, 36, and 38. In April, the Veteran stated that he was having racing thoughts and rapid mood swings. In November, the Veteran stated that he had nightmares on a nightly basis. For all months, the examiners noted that the Veteran was oriented to person, place, situation, and time. His hygiene and grooming were good. He was cooperative and calm. His mood was neither depressed nor euthymic, and his affect was broad. The Veteran's speech was within normal limits and thought processes were lucid and reality based. The Veteran denied having suicidal or homicidal ideations. There was no evidence of psychosis and his insight and judgment were fair. The examiner confirmed the PTSD diagnosis. See id. at 18, 36 and 38. In August 2012, the examiner noted the Veteran was oriented to person, place, time, and situation. See Medical Treatment Record-Non-Government Facility entered in Caseflow Reader in September 2012, p. 15. The Veteran's affect was restricted and his mood was depressed. But, he was alert. He denied suicidal and homicidal ideation. See id. His speech was clear, and he did not experience hallucinations. There was no anhedonia. See id. His thought process was linear/goal oriented and his short and long-term and immediate memories were intact. See id. The Veteran's insight was fair and eye contact and psychomotor activity were normal. See id. at 16. The examiner confirmed the PTSD diagnosis and assigned a GAF score of 55. In September 2012, the Veteran was evaluated at NaphCare. See Medical Treatment Record-Non-Government Facility entered in Caseflow Reader in September 2012. During the evaluation, the Veteran stated that he did not experience hallucinations or felt depressed. The Veteran stated that he did not have any suicidal, homicidal, or aggressive ideation. He denied suicidal attempts. The Veteran was looking forward to the immediate future. The examiner stated that the Veteran was oriented to person, place, time, and situation. His appearance, behavior, affect, and perception were appropriate. The examiner noted that the Veteran was alert. See id. at 5-7. Based on the foregoing, the Board will afford the Veteran the benefit of the doubt and grant a 70 percent rating for the period on appeal. However, the Veteran's symptomatology does not reflect total occupational or social impairment at any time. During the May 2009 exam, the Veteran stated that he had friends. The Veteran also stated that when he was drinking, he felt depressed and guilty and experienced some passive suicidal ideation during the times he thought about not being the father that he could be and about the way his life had been going. However, he has not been evaluated as being a persistent danger to himself or others. The May 2009 examiner noted that the Veteran's depressive symptoms and substance abuse pattern were both independent of his reported PTSD disorder symptoms. From November 2009 to September 2012, the Veteran was seen by an examiner in the correctional facility. The examiners noted that the Veteran was appropriately groomed and had fair to good hygiene. He was usually oriented times three or four. The examiners noted that the Veteran was polite and cooperative. His speech was clear, coherent, and spontaneous. His thought process was intact, logical, and linear. His thought content was appropriate to the situation. There were no distortions to the Veteran's perception. His memory was intact. His mood was euthymic and affect was congruent to his mood and/or broad. The Veteran denied suicidal and homicidal ideations. His impulse control and insight and judgment were fair. In sum, for the entire period on appeal, the weight of the evidence supports a 70 percent rating, but no higher, for the Veteran's PTSD. IV. TDIU It is the established policy of VA that all veterans who are unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16. A finding of total disability is appropriate when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15. "Substantially gainful" employment is employment that is "ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." See Moore v. Derwinski, 1 Vet. App. 356, 358 (1991) (adding that the definition of substantially gainful employment suggests a living wage). Marginal employment is not considered substantially gainful employment. See 38 C.F.R. § 4.16(a); see also Moore, 1 Vet. App. at 358 ("The ability to work only a few hours a day or only sporadically is not the ability to engage in substantially gainful employment."). A TDIU may be assigned if the schedular rating is less than total when it is found that the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one such service-connected disability, it must be ratable at 60 percent or more. 38 C.F.R. § 4.16(a). If there are two or more such disabilities, at least one disability must be rated at 40 percent or more, and there must be sufficient additional service-connected disability to bring the combined rating to 70 percent or more. Id. Where applicable, disabilities resulting from a common etiology are considered a single disability for the purpose of satisfying the percentage standards set forth in 38 C.F.R. § 4.16(a). Where the schedular criteria set forth above are not met, but a veteran is nonetheless found to be unemployable by reason of service-connected disabilities, VA shall submit the case to the Director of Compensation Service for extraschedular consideration. See 38 C.F.R. § 4.16(b). A TDIU claim presupposes that the rating for the service-connected condition is less than 100 percent, and only asks for TDIU because of subjective factors that the objective rating does not consider. See Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). Thus, in evaluating a veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341(a), 4.16, 4.19. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In January 2009, the Veteran submitted an Application for Increased Compensation based on Unemployability. The Veteran stated that he was unable to work due to his PTSD and testicular torsion. a. TDIU prior to July 27, 2015 The Board notes that prior to July 27, 2015, the Veteran's right and left knee patellofemoral pain syndrome was rated at 20 and 10 percent, respectively, effective March 30, 2010, and erectile dysfunction with testicular pain with a noncompensable rating effective May 21, 2007. With the grant of 70 percent effective the date of the Veteran's claim for an increase in January 2009, the Veteran meets the percentage requirements effective in January 2009. 38 C.F.R. § 4.16(a). The Board concludes that after resolving reasonable doubt in the Veteran's favor, TDIU is granted. During the May 2009 VA examination, the Veteran stated that he has never been able to keep a job and that his longest employment was his time in the military. The Veteran worked between January and April as a helper building scaffolds. He had been unemployed about a month at the time of this interview. The Veteran has worked various construction jobs off and on. The last time he worked at a construction job for any period of time was in 2008 when he worked for 3 or 4 months in this capacity. The Board observes that the Veteran was incarcerated for a period of time during the pendency of this appeal, due in part to his substance abuse. The Board observes that the Veteran is now service connected for PTSD and alcohol abuse. Therefore, after resolving reasonable doubt in his favor, the Board concludes that the criteria for TDIU were met prior to July 25, 2015. b. TDIU from July 27, 2015 Because a 100 percent schedular rating for PTSD is assigned from July 27, 2015, the Board finds that entitlement to a TDIU from such date is rendered moot for the reasons expressed below. The United States Court of Appeals for Veterans Claims (Court/CAVC) has held that a 100 percent schedular rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. See Holland v. Brown, 6 Vet. App. 443, 446 (1994) (citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990)). Thus, if VA has found a Veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the Rating Schedule, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding request for a TDIU moot where 100 percent schedular rating was awarded for the same period). The Court subsequently has held, however, that the award of a 100 percent disability rating does not render moot a claim of entitlement to a TDIU. See Bradley v. Peake, 22 Vet. App. 280 (2008). In Bradley, the Court determined that a separate TDIU predicated on one disability (although perhaps not ratable at the schedular 100-percent level) when considered together with another disability separately rated at 60 percent or more could warrant special monthly compensation (SMC) under 38 U.S.C. § 1114(s). Thus, the Court reasoned, it might benefit the Veteran to retain or obtain the TDIU even where a 100 percent schedular rating also has been granted. Bradley, at 293-94. Because of this holding, VA's General Counsel withdrew VAOPGCPREC 6-99, which was contrary to the holding of Bradley. See 75 Fed. Reg. 11229 -04 (March 10, 2010). Indeed, as noted in Bradley, VA must consider a TDIU claim despite the existence of a schedular total rating and award SMC under 38 U.S.C. § 1114(s) if VA finds the separate disability supports a TDIU independent of the other 100 percent disability rating. See id. The Board has jurisdiction where there is a question of law or fact necessary to a decision by the Secretary of VA under a law that affects the provision of benefits administered by VA. See 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.101 (2017). The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. See 38 U.S.C. § 7105(d)(5) (2017). Here, service connection is in effect for PTSD which is rated as 100-percent disabling since July 27, 2015. In light of Buie and Bradley, and VA's obligation to maximize the Veteran's benefits, the Board considered whether the Veteran meets the criteria for a TDIU based on the impact of his remaining service-connected disabilities: right and left knee patellofemoral pain syndrome rated at 20 and 10 percent, respectively and erectile dysfunction which had a noncompensable rating. Significantly however, there is no such suggestion or indication those disabilities either alone or in the aggregate would render him unemployable. Thus, the granting of the 100 percent schedular rating for his PTSD renders moot any claimed entitlement to a TDIU as of July 27, 2015. See Vettese v. Brown, 7 Vet App. 31 (1994) (observing that a "claim for TDIU presupposes that the rating for the condition is less than 100 percent"); Holland v. Brown, 6 Vet App. 443 (1994). ORDER The reduction of the Veteran's VA compensation payments to the 10 percent rate, due to incarceration was proper and the appeal is denied. Prior to July 27, 2015, entitlement to a 70 percent rating for PTSD, but no higher, is granted. Entitlement to TDIU prior to July 27, 2015 is granted. REMAND Before a decision can be reached on the Veteran's OSA, a remand is necessary to ensure that there is a complete record upon which to afford the Veteran every possible consideration. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). In November 2009, the Veteran was diagnosed with moderate to severe OSA. See Capri entered in Legacy in August 2012, p. 20. The Veteran has not been afforded a VA examination regarding his service connection claim for sleep apnea. Therefore, the claim is remanded to provide the Veteran an examination to determine the etiology of his sleep apnea. See McClendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A(d)(2) (2012); 38 C.F.R. § 3.159 (c)(4)(i) (2017). Accordingly, the case is REMANDED for the following action: 1. Obtain any additional VA or private treatment records identified by the Veteran pertaining to the claim on appeal. 2. Schedule the Veteran for a VA examination to determine the etiology of his OSA. The claims file, to include a copy of this remand, must be made available to the examiner for review prior to the exam. The examiner should provide an opinion as to whether it is at least as likely as not (i.e. probability of 50 percent or greater) the Veteran has a current sleep apnea disability that is etiologically related to or began during his service. A complete rationale should be given for all opinions and conclusions. Such rationale must include a discussion of all relevant findings from the examination and applicable medical principles. The examiner's findings, conclusions, and supporting rationale should be expressed in a report. 3. After completion of the above development is completed, the claim should be readjudicated. If the determination remains adverse to the Veteran, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be given a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs