Citation Nr: 20004851 Decision Date: 01/22/20 Archive Date: 01/21/20 DOCKET NO. 17-15 720 DATE: January 22, 2020 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to depressive disorder, not otherwise specified (NOS), is remanded. Entitlement to a rating in excess of 30 percent for depressive disorder NOS prior to October 31, 2014, and in excess of 50 percent thereafter, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Coast Guard from October 1977 to April 1979. These matters come to the Board of Veterans’ Appeals (Board) on appeal from June 2013, July 2014, and July 2016 rating decisions issued by a Department of Veterans’ Affairs (VA) Regional Office. In the June 2013 rating decision, the agency of original jurisdiction (AOJ) granted service connection and a 30 percent rating for depressive disorder NOS, effective July 12, 2011. The Veteran filed a timely notice of disagreement (NOD) with respect to the rating in July 2013, and the AOJ furnished her a statement of the case (SOC) in January 2015, after increasing the rating for her depressive disorder to 50 percent, effective October 31, 2014. Thereafter, the Veteran did not file a VA Form 9 (Appeal to Board of Veterans’ Appeals) within 60 days. However, she did file an NOD within that time frame that contained the necessary information, including argument to the effect that a higher rating was warranted from an earlier date. See 38 C.F.R. § 20.202 (2018). Under the circumstances, and construing her submissions liberally, the Board finds that the current appeal with respect to the rating for the Veteran’s depressive disorder is best viewed as being on appeal from the AOJ’s June 2013 rating decision. The issues on appeal have been recharacterized accordingly. In November 2019, the Veteran testified at a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s claims and to afford her every possible consideration. 1. Entitlement to service connection for sleep apnea, to include as secondary to depressive disorder NOS is remanded. The Veteran was afforded a VA examination for sleep apnea in June 2014. The examiner diagnosed obstructive sleep apnea, but opined that the Veteran’s sleep apnea was less likely than not proximately due to or the result of her service-connected depressive disorder. The examiner indicated that the Veteran’s sleep apnea was more likely related to morbid obesity than depression. Although the examiner addressed the etiology of the Veteran’s sleep apnea in terms of causation, she did not address aggravation as it related to the Veteran’s service-connected depressive disorder. The Board notes that secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995). As the June 2014 examiner did not address aggravation, the examination is incomplete and further development is necessary. 2. Entitlement to a rating in excess of 30 percent for depressive disorder NOS prior to October 31, 2014, and in excess of 50 percent thereafter, is remanded. The Veteran was last examined for purposes of assessing the severity of her depression in October 2014. During the November 2019 Board hearing, she testified that her condition had worsened since that time. As such, a new examination is warranted. See, e.g., Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). 3. Entitlement to a TDIU is remanded. The Veteran’s claim for a TDIU is inextricably intertwined with the claims being remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). As such, the TDIU claim will be remanded as well. These matters are REMANDED for the following action: 1. Obtain copies of records pertaining to any relevant VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for a VA psychiatric examination. The examiner should review the record. All indicated tests should be conducted and the results reported. The examiner should assess the current severity of the Veteran’s depressive disorder and provide a full description of associated functional impairments as they relate to the relevant rating criteria. 3. Also arrange to have the Veteran scheduled for a VA examination pertaining to sleep apnea. The examiner should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that sleep apnea had its onset in, or is otherwise attributable to, the Veteran’s period of active service. If it is the examiner’s opinion that it is unlikely that sleep apnea had its onset in, or is otherwise attributable to, service, the examiner should offer a further opinion as to whether it is at least as likely as not that such disability has been (a) caused or (b) worsened beyond natural progression by the Veteran’s service-connected depressive disorder. The examiner should also offer an opinion as to each of the following questions: (a) Is it at least as likely as not that the Veteran’s service-connected depression caused her to become obese? (b) If so, is it at least as likely as not that the obesity due to the service-connected depression was a substantial factor in causing the Veteran’s sleep apnea? (c) Is it more likely than not (i.e., more than 50 percent likely) that the Veteran’s sleep apnea would not have occurred but for the obesity caused by her service-connected depression? A complete medical rationale for all opinions expressed must be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claims, to include the TDIU claim, should be adjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and her representative should be issued a supplemental statement of the case. Allow an appropriate period of time for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Kettler, 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.