Citation Nr: 20009841 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 17-25 779 DATE: February 6, 2020 REMANDED Entitlement to an initial evaluation in excess of 50 percent for a service-connected sleeping disorder, to include obstructive sleep apnea, effective July 26, 2001, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from June 1969 to December 1977. He died in July 2011, and the appellant is the Veteran's surviving spouse and is pursuing the appeal as a substituted claimant under the provisions of 38 U.S.C. § 5121A. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veteran’s Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). In this rating decision, the AOJ implemented a prior Board allowance of entitlement to service connection for a sleeping disorder, to include obstructive sleep apnea; a 50 percent evaluation was assigned, effective July 26, 2001. The appellant expressed timely disagreement with the assigned initial evaluation, and the current appeal ensued. In April 2006, at a Board videoconference hearing, the Veteran and the appellant presented testimony before a Veterans Law Judge (VLJ) who is no longer employed by the Board. A transcript of the Board hearing has been associated with the physical claims file. As the VLJ retired, the Appellant was given an opportunity for another hearing. In December 2019, at a Board videoconference hearing, the appellant presented testimony from the Regional Office in Muskogee, Oklahoma, before the undersigned VLJ. A transcript of the Board hearing has been associated with the physical claims file. At the December 2019 hearing, the appellant asserted that the Veteran’s service-connected obstructive sleep apnea negatively impacted his employability during his lifetime. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. As such, the case caption, above, has been amended to include the issue of whether a TDIU rating is warranted. 1. Entitlement to an initial evaluation in excess of 50 percent for a service-connected sleeping disorder, to include obstructive sleep apnea is remanded. The Board finds that further development is necessary before a decision on the merits may be made regarding the issue of entitlement to disability rating higher than 50 percent for a sleeping disorder, to include obstructive sleep apnea. Sleep apnea that requires the use of “a breathing assistance device” such as a continuous airway pressure (CPAP) machine is rated 50 percent disabling, and this criterion is clearly demonstrated based on the AOJ’s assignment of a 50 percent initial evaluation. Sleep apnea that manifests chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requires tracheostomy, is rated 100 percent disabling. 38 C.F.R. § 4.97. The evidence alludes to symptoms congruent with the criteria of a 100 percent evaluation for obstructive sleep apnea; however, it remains unclear whether the criteria for a 100 percent evaluation were met. Further, as noted above, the appellant testified during the Board hearing that he was unable to work, indicating that his symptoms increased in severity after his last VA examination on September 22, 2010. After review of the medical, service, and lay evidence, questions remain concerning the nature of the Veteran’s service-connected sleep apnea symptoms and their resulting functional and occupational impairment. As these medical questions are beyond the Board’s purview, a remand for retrospective medical opinions is necessary. Colvin v. Derwinski, 1 Vet. App. 171 (1991). Chotta v. Peake, 22 Vet. App. 80 (2008). 2. Entitlement to a TDIU Although the Veteran's combined evaluation did not meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a) during the appeal period, there is evidence that his service-connected sleep apnea negatively impacted his employability between his the Veteran’s last employment and his passing in July 2011. In the present case, if the appellant’s appeal is seeking an increased initial evaluation is granted to the fullest extent, the matter of entitlement TDIU will be rendered moot. However, if the appeal for an increased evaluation remains denied, the evidence supports that the matter must be referred to the Undersecretary of Benefits or Director of Compensation Service for consideration of an extraschedular TDIU as per 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1, 10 (2001) (recognizing that "the [Board] is not authorized to assign an extraschedular rating in the first instance under 38 C.F.R. § 3.321(b) or § 4.16(b)); Smallwood v. Brown, 10 Vet. App. 93, 98 (1997); Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996). The matter is REMANDED for the following actions: 1. The AOJ must transfer the Veteran’s electronic file transferred to an appropriate VA clinician. After review of file, the VA clinician should address the following questions: (a.) Did the Veteran’s obstructive sleep apnea result in chronic respiratory failure with carbon dioxide retention or cor pulmonale? (b.) Did the Veteran’s obstructive sleep apnea result in chronic respiratory failure requiring a tracheostomy? (c.) Did the Veteran have narcolepsy during the appeal period? (d.) If the response to (c) is affirmative, were any of the above-noted symptoms in (a) or(b) associated with his service-connected obstructive sleep apnea, as opposed to narcolepsy? 2. Thereafter, the AOJ must readjudicate the issue seeking an initial evaluation in excess of 50 percent for service-connected obstructive sleep apnea. If the benefit is not granted to the fullest extent, the Veteran and her representative must be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond. *The Board notes that directives 1 – 2 must be undertaken before developing and adjudicating the issue seeking to establish TDIU. 3. Thereafter, the AOJ must complete any additional evidentiary development necessary to adjudicate the appeal for TDIU, to specifically include collecting and verifying information that concerns the Veteran's complete educational and occupational history, and obtaining a retrospective medical opinion, if necessary. 4. Thereafter, the appellant’s appeal seeking a TDIU must be referred to the Director of Compensation Service for consideration of assignment of an extraschedular evaluation under 38 C.F.R. § 4.16 (b). If any benefit sought is not granted to the fullest extent, the AOJ must issue an additional Supplemental Statement of the Case which readjudicates the matter, and the appellant and her representative must be given an adequate opportunity to respond. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Debra B. McLoughlin, 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.