Citation Nr: 20004686 Decision Date: 01/23/20 Archive Date: 01/21/20 DOCKET NO. 13-04 924 DATE: January 23, 2020 REMANDED Entitlement to a rating in excess of 70 percent from October 5, 2010 to March 16, 2016 and from June 1, 2016 to September 27, 2016, and in excess of 50 percent from September 28, 2016 for posttraumatic stress disorder (PTSD) with unspecified depressive disorder is remanded. Entitlement to service connection for obstructive sleep apnea (OSA), including as secondary to service-connected PTSD with depression 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 on active duty from June 1963 to April 1967. This case comes to the Department of Veterans Affairs (VA) Board of Veterans’ Appeals (Board) on appeal from Agency of Original Jurisdiction (AOJ) rating decisions dated in May 2011, December 2012, and May 2013. An October 2017 Board decision regarding the claim for an increased rating for PTSD was vacated by the United States Court of Appeals for Veterans Claims (CAVC) in May 2019. The October 2017 Board decision remanded the claims for a TDIU and service connection for OSA to the AOJ. All issues have since returned to the Board for further adjudication. Unfortunately, due to the reasons that follow, another remand of these issues is required. Although the Board sincerely regrets this additional delay, it is necessary to ensure that the Veteran is afforded adequate due process and every possible consideration. REASONS FOR REMAND 1. Entitlement to a rating in excess of percent for PTSD with unspecified depressive disorder is remanded. Although the May 2019 CAVC Memorandum Decision declined to address the issue of entitlement to an extraschedular rating for PTSD, the Veteran’s representative in an October 2019 appellate brief raises this issue. Therefore, a remand is necessary for this purpose. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). On remand, the AOJ should consider whether the Veteran’s increased rating claim should be referred to VA’s Director of Compensation Service (or his/her designee) for extraschedular consideration, pursuant to the provisions of 38 C.F.R. § 3.321(b)(1). Moreover, as the Veteran’s most recent VA examination for PTSD was in September 2016, the Board will remand the case for a more current VA examination and assessment of the current severity of the Veteran’s PTSD symptoms. Thus, the AOJ should schedule the Veteran for a VA examination on remand. 2. Entitlement to service connection for obstructive sleep apnea (OSA), including as secondary to service-connected PTSD with depression is remanded. The Veteran underwent a VA examination for his OSA in August 2019. The examiner opined that it is less likely than not that the Veteran’s OSA is caused by or aggravated beyond its natural progression by his PTSD. However, in October 2019, the Veteran’s representative submitted articles in support of the Veteran’s claim that have not been addressed by a VA examiner. Moreover, the examiner opined that “it is not possible to state that the psychiatric factors are the primary cause of” the Veteran’s obesity. However, when considering obesity as a theory for secondary service connection, this is not the standard, and a service-connected disability need not be a “primary cause” of weight gain. Obesity need only be an “intermediate step” to establish service connection for another disability as secondary to an already service-connected disability under certain circumstances. See VAOPGCPREC 01-17 (January 6, 2017). Here, obesity would be an “intermediate step” in establishing secondary service connection for OSA if: 1) the Veteran’s service-connected PTSD caused him to become obese; 2) if obesity is a “substantial factor” in the development of OSA; and 3) if OSA would not have occurred but for the obesity caused by the service-connected PTSD and depression. A remand is necessary for an examiner to properly address all of these factors. 3. Entitlement to a TDIU is remanded. When a Veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extraschedular rating may never nevertheless be warranted where the veteran is unemployable due to service-connected disabilities. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Should the Board discern a plausible basis for an extraschedular TDIU, it must refer the matter to the Director of Compensation Service for an initial decision before the Board may decide the issue. See Wages v. McDonald, 27 Vet. App. 233, 236 (2015). Here, from September 28, 2016, the Veteran does not meet the minimum disability rating percentage threshold for consideration of schedular TDIU. 38 C.F.R. § 4.16(a). While the most recent rating code sheet from September 2019 shows that the Veteran met the schedular criteria from October 5, 2010 to March 17, 2016 and from June 1, 2016 to September 28, 2016, there is part of the appellate period for which he did not meet the criteria. Moreover, as the Board is remanding the Veteran’s claims for an increased rating and service connection, the outcome of these claims may impact the Veteran’s claim for a TDIU. As the issues are inextricably intertwined, they shall all be remanded. The Board notes that there is a question of the Veteran’s ability to secure and follow substantially gainful employment throughout the appeal period. In October 2011, the Veteran’s VA psychiatrist noted that the Veteran was having increased problems at work, and in his professional opinion, the Veteran was not able to work because of PTSD. In March 2012, he opined that the Veteran had trouble working due irritation and emotional numbing, and that the Veteran’s ability to handle occupational tasks was seriously impaired, though the Veteran continued to work. The record reflects that the Veteran stopped working in approximately February 2013. In May 2016, the Veteran’s treating VA psychiatrist opined that the Veteran was not employable. However, in approximately August 2019, the Veteran began working again. It is unclear if the Veteran’s current position qualifies as substantially gainful employment. Nevertheless, for at least part of the appeal period, that is, from September 28, 2016 to August 2019, the evidence raises a question as to whether the Veteran was capable of substantially gainful employment, in spite of not meeting the schedular requirements for a TDIU. The Board is prohibited from awarding extraschedular TDIU in the first instance. Wages, 27 Vet. App. at 235-39. Accordingly, remand is required to refer consideration of extraschedular TDIU to the Director of the Compensation Service. Additionally, the VA outpatient records reflect that the Veteran was involved in Vocational Rehabilitation from approximately March 2016 to May 2016. However, the outpatient records simply refer to Vocational Rehabilitation, but do not include the actual records. Therefore, these records must be obtained on remand. The matters are REMANDED for the following action: 1. Obtain any updated and current relevant VA treatment records and supplement the claims file. 2. Obtain any vocational rehabilitation pertaining to the Veteran and associate them with the claims file. 3. Obtain a supplemental opinion from an appropriate VA examiner to determine the etiology of the Veteran’s obstructive sleep apnea. If the examiner determines that he or she cannot respond to the Board’s inquiry as set forth in detail below without examination of the Veteran, the Veteran should be afforded such an examination. (a.) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran’s sleep apnea is proximately due to, or alternatively, aggravated beyond its natural progress by the Veteran’s service-connected PTSD with unspecified depressive disorder. The examiner should also consider and address the article submitted by the Veteran in December 2019. (b.) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater) that: 1) the Veteran’s service-connected PTSD caused the Veteran’s obesity; 2) the Veteran’s obesity is a substantial factor in his developing obstructive sleep apnea; and 3) the Veteran’s obstructive sleep apnea would not have occurred but for his obesity. An explanation for all opinions expressed must be provided. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner 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. 4. Schedule the Veteran for an appropriate VA examination to assess the current severity of his service-connected PTSD with unspecified 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 service-connected PTSD with unspecified depressive disorder, alone. 5. Pursuant to the provisions of 38 C.F.R. § 3.321 (b)(1), determine whether referral to the Director of Compensation Service (or his/her designee) of the matter of the Veteran’s entitlement to an extraschedular increased rating for service-connected PTSD with unspecified depressive disorder is appropriate. If not, a clear explanation for this determination must be associated with the record. 6. Then, (a.) readjudicate the Veteran’s claims for an increased rating for PTSD with unspecified depressive disorder and service connection for sleep apnea; (b.) obtain an updated VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability) including all employment information from the Veteran for the period from September 28, 2016 to present and to include information regarding his employment beginning in August 2019; and (c.) if the Veteran’s service-connected disabilities still do not meet the threshold percentage criteria for a TDIU from September 28, 2016, and he has not been gainfully employed during this time, then refer the TDIU claim to the Director of Compensation and Pension Service for consideration of an extraschedular TDIU rating. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Smith, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.