Citation Nr: 20052215
Decision Date: 08/06/20	Archive Date: 08/06/20

DOCKET NO. 08-06 558A
DATE: August 6, 2020

REMANDED

Entitlement to service connection for obstructive sleep apnea (OSA), as secondary to service-connected dysthymia disorder is remanded.

Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded.

REASONS FOR REMAND

The Veteran had active duty service from October 1964 to July 1965. 

This matter comes before the Board of Veterans’ Appeals (Board) from June 2006 and September 2013 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran’s claims on appeal were previously denied by the Board in February 2019, and the Veteran subsequently appealed that decision to the Court of Appeals for Veterans Claims (CAVC). In September 2019, CAVC granted the parties’ Joint Motion for Remand (JMR) and remanded the claims for further action consistent with the JMR.

1. Entitlement to service connection for obstructive sleep apnea (OSA), as secondary to service-connected dysthymia disorder is remanded.

2. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded.

Per the September 2019 CAVC JMR, the Board relied upon an inadequate medical opinion, namely the August 2017 VA examiner’s medical opinion, which did not address the aggravation prong to secondary service connection. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2012). Accordingly, a duty still exists to assist the Veteran by ensuring that he receives an adequate medical examination, one that addresses whether his service-connected dysthymia disability aggravated his claimed for OSA condition. 38 U.S.C. § 5103A; Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). As the Veteran’s claim for a TDIU is inextricably intertwined with his claim for service connection for OSA, the Board will defer deciding the TDIU issue, in accordance with the September 2019 CAVC JMR, pending completion of the herein requested additional development on the claim for service connection for OSA. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).

The matters are REMANDED for the following action:

1. Obtain an addendum medical opinion for the Veteran’s claimed for OSA condition. Upon review of the pertinent evidence of record, to include this remand, as well as the September 2019 CAVC JMR, the VA examiner is requested to opine as to the following: 

Is it at least as likely as not (50 percent probability or greater) that the Veteran’s OSA condition is proximately due to service-connected disability or is aggravated beyond its natural progression by the service-connected dysthymia disorder?

The VA examiner must specifically address the aggravation prong to secondary service connection. See July 2020 CAVC JMR. 

2. Thereafter, if the Veteran meets schedular for a TDIU, readjudicate the claim based on the entirety of the evidence, to include the June 18, 2020 expert vocational assessment. If the Veteran does not meet schedular for a TDIU, consider whether referral of the TDIU claim to the Director of Compensation for extraschedular consideration is warranted. 

 

 

K. J. ALIBRANDO

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	S.R. Fey, 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.