Citation Nr: A20017617 Decision Date: 11/30/20 Archive Date: 11/30/20 DOCKET NO. 200807-102547 DATE: November 30, 2020 ORDER Entitlement to service connection for obstructive sleep apnea (OSA), secondary to service-connected sinusitis, on a causation basis, is granted. Entitlement to service connection for headaches, secondary to service-connected sinusitis, on a causation basis, is granted. Entitlement to an increased 50 percent rating for service-connected sinusitis is granted subject to the laws and regulations controlling the award of monetary benefits. REMANDED Entitlement to service connection for depression is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran’s OSA was caused by his service connected sinusitis. 2. The evidence is at least evenly balanced as to whether the Veteran’s headaches are caused by his service connected sinusitis. 3. The Veteran’s sinusitis symptomatology more nearly approximates near-constant sinusitis characterized by headaches, pain, and tenderness of the affected sinus, and purulent discharge or crusting after repeated surgeries. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for OSA secondary to sinusitis, on a causation basis, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for headaches secondary to sinusitis, on a causation basis, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for a 50 percent rating for the Veteran’s sinusitis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.20, 4.27, 4.97, Diagnostic Codes (DC) 6513. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1963 to April 1965, and May 1965 to May 1969. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an October 2019 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which, among one other thing, continued its denial of service connection for headaches, a June 2020 rating decision which continued a 30 percent evaluation for sinusitis, and a July 2020 rating decision which denied service connection for depression and OSA. On August 23, 2017, the President signed into law the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. In August 2020, the Veteran filed a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) requesting an Evidence Submission Review, indicating he would submit additional evidence he wished considered within 90 days in support of his appeal. 38 C.F.R. §§ 20.202(a)(3); 20.303. This decision has been written consistent with this AMA framework. Service connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is also warranted for disability proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (b). Obstructive Sleep Apnea March 2017 VA treatment records reflect a diagnosis of OSA. A July 2017 VA examination report reflected that the Veteran had diagnosis of OSA and was prescribed a continuous positive airway pressure (CPAP) machine after complaining of snoring, observed apneas, and hypersomnolence. The physician opined that the Veteran’s OSA was less likely than not (less than a 50 percent probability) incurred in, or caused by an in-service injury, event or illness. She noted that the Veteran’s marked no frequent trouble sleeping on his medical history report upon discharge, and that this medical examination report upon discharge was normal. The physician reported that there was no diagnosis of OSA in the Veteran’s service treatment records, nor were there any symptoms consistent with sleep apnea. She also noted that the Veteran did not file a claim for OSA until April 2017. Therefore, she concluded a link between OSA and service could not be identified. In a February 2018 disability benefits questionnaire (DBQ), the examining physician opined that the Veteran’s OSA was less likely than not (less than a 50 percent probability) proximately due to or the result of the Veteran’s service connected sinusitis, stating that OSA is due to upper airway obstruction during sleep resulting from the throat muscles relaxing during sleep. He stated that the most common associated cause is obesity and noted the Veteran’s weight at the time of his sleep study to be more than 100 lbs. than at discharge, and thus more likely than not the cause of his OSA. In an August 2018 statement, the Veteran reported that during his May 2018 ear, nose, and throat (ENT) examination, he was informed he would need surgery due to his sinusitis, and was also told that the sinus blockage contributed to his OSA. He reported that the ENT physician indicated that the Veteran’s weight was not the primary cause of his OSA, noting over 50 years of sinus issues. In a December 2018 DBQ, the examiner opined that the Veteran’s OSA was at least as likely as not (at least a 50 percent probability) proximately due to or the result of the Veteran’s sinusitis. The examiner, quoting medical literature on the internet, stated that nasal allergies, sinus infections, and the common cold can all cause the linings of the nose and sinuses to swell and make breathing at night difficult. She stated that the Veteran had many years of sinus and allergy treatment during his military service and still has problems, noting that the Veteran takes allergy medication daily. She noted a December 2018 diagnosis of OSA, and reported that the Veteran stated that the condition began in 1964 while in service when he began having periods of tiredness upon awakening in the morning. He stated that he did not sleep much at night due to sinus problems and allergies. The Veteran reported symptoms of snoring which disturbs his wife, and persistent daytime hypersomnolence. In a February 2019 DBQ, the physician opined that the Veteran’s OSA was less likely than not (less than a 50 percent probability) proximately due to or the result of the Veteran’s sinusitis after a review of the claims file. She noted that the December 2018 DBQ provided “generalized statements concerning sinus, obstruction, allergies, and sinus infections, but did not relate it to the service clinical visits.” She concluded that based on the evidence of record in the service treatment records, private treatment records, and considering the Veteran’s contentions, the Veteran’s OSA is less likely than not due to, or the result of his in service complaints, or permanently aggravated by his sinusitis. In a January 2020 DBQ, the February 2019 physician provided an addendum opinion stating that the Veteran is service connected for sinusitis, and OSA is caused by recurrent collapse of the oropharyngeal airway during sleep causing reduced or complete cessation of the airflow. She explained that there are no confirmed medical studies that document a cause and effect between sinusitis and OSA, and sinusitis does not cause a recurrent collapse of the oropharyngeal airway during sleep. Therefore, she concluded that it is less likely than not (less than a 50 percent probability) that the Veteran’s OSA is due to or the result of his service connected sinusitis. She also stated that there is no link to cause aggravation or permanent worsening of his OSA by his service connected sinusitis, noting that medical records do not confirm any worsening of the OSA by his sinusitis. Therefore, she opined that it is less likely than not that the Veteran’s OSA was aggravated above the natural progression by his service connected sinusitis. In an April 2020 DBQ, the same physician again opined that the Veteran’s OSA was less likely than not (less than a 50 percent probability) aggravated beyond its natural progression by his service connected sinusitis. She stated that it is true that one can have difficulties using a CPAP with active sinusitis, but that it would be a temporary issue related to the treatment for sleep apnea and would not cause permanent aggravation or worsening of the OSA itself. She indicated that there are no medical records confirming a worsening of the OSA over the natural progression of the OSA, noting that as the Veteran’s OSA is mainly positional, not sleeping on his back would also be a treatment modality. In a letter accompanying the VA Form 10182 Notice of Disagreement, the Veteran’s attorney specifically challenged the competence of the examiner who conducted the February 2019 examination. VA is presumed to have properly chosen an examiner who is qualified to provide competent medical evidence, but the requirement that the veteran raise the issue of the competency of the medical examiner is best referred to simply as a “requirement” and not a “presumption of competency.” Francway v. Wilkie, 940 F.3d 1304, 1307, n. 1 (Fed. Cir. 2019) (en banc). While the issue of the competence of the VA examiner has been raised and is thus entitled to information regarding the qualifications of the examiner, as will be discussed, the Veteran’s claim for service connection for OSA secondary to sinusitis is being granted in full. Therefore, remand for additional information regarding the qualifications of the examiner is not necessary. The evidence of record is at least evenly balanced as to whether the Veteran’s OSA was caused by his service connected sinusitis. March 2017 VA treatment records indicate that the Veteran has a current diagnosis of OSA, thus the current disability requirement for service connection has been established. While the July 2017 examiner opined that the Veteran’s OSA was less likely than not (less than a 50 percent probability) incurred in, or caused by an in-service injury, event or illness, the examiner based their opinion primarily on the fact that the Veteran’s medical examination upon discharge was normal, and on a lack of treatment for OSA symptoms during service which is impermissible. See Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). Therefore, the July 2017 examination report is inadequate and afforded no probative value. While the February 2019 physician has provided multiple opinions indicating that the Veteran’s OSA was less likely than not (less than a 50 percent probability) caused or aggravated by his sinusitis, the December 2018 examiner opined that the Veteran’s OSA was at least as likely as not (at least a 50 percent probability) proximately due to, or the result of his sinusitis, and provided a thorough rationale based on an accurate characterization of the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Therefore, the December 2018 examiner’s opinion is afforded significant probative value. Additionally, the Veteran has stated that he was informed by his ENT physician that his weight was not the primary cause of his OSA, but that his sinus blockage contributed to his OSA. In this regard, the Court has held that lay evidence regarding what a medical professional told a lay person was specifically listed as an example of competent lay testimony in Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, the Veteran is competent to relate what physicians stated to him regarding a possible nexus and there is no indication in the evidence of record that the Veteran lacks credibility. As the reasonable doubt caused by this relative equipoise in the evidence must be resolved in favor of the Veteran, service connection for OSA secondary to service connected sinusitis on a causation basis is warranted. Headaches The Veteran’s service treatment records do not reflect treatment for, or complaints of headaches, and his April 1969 medical examination report upon discharge is normal. March 2015 private post service treatment records indicate the Veteran complained of frontal headaches. An October 2018 DBQ indicated that the Veteran had not been diagnosed with a headache condition, but the examiner noted the Veteran’s private treatment records which reflected frontal sinusitis with chronic sinus headaches, and also reflected the Veteran’s reports of a feeling of fullness and dizziness without frank vertigo, and often facial tenderness over the affected sinus. The examiner noted that the Veteran did not have a current complaint of headaches, but noted the Veteran’s report of symptoms which included headache pain on both sides of the head, worsened by physical activity. The Veteran reported headache pain which lasted more than 2 days. The examiner opined that the Veteran’s headaches were not at least as likely as not (at least a 50 percent probability) proximately due to or the result of sinusitis. The examiner explained that the Veteran did not suffer from a chronic headache syndrome such as migraine headaches, but experienced cephalgia caused by sinus pressure at the times he suffered from acute sinusitis, or with barosinusitis caused by chronic sinusitis which is not indicative of a primary neurologic condition. He also stated that the Veteran’s sensations of sinus fullness, facial tenderness, and headache are due to his sinusitis which was addressed by his recent sinus surgery, but they do not suggest a headache syndrome. The evidence of record is at least evenly balanced as to whether the Veteran’s headaches are caused by his service connected sinusitis. While the October 2018 examiner stated that Veteran did not suffer from a chronic headache syndrome, the March 2015 private treatment records indicate the Veteran complained of frontal headaches, and the Veteran has competently and credibly maintained that he suffers from headaches. Jandreau v. Nicholson, 492 F. 3d 1372, 1377, n.4 (Fed. Cir. 2007). Therefore, resolving reasonable doubt in favor of the Veteran, the Board finds that based on the evidence, the Veteran suffers from headaches and the current disability requirement for service connection has been met. See 38 C.F.R. § 3.102 (benefit of the doubt doctrine applies to any point within a claim as well as its ultimate disposition). As to the issue of whether there is a nexus between the Veteran’s headaches and his sinusitis, while the October 2018 examiner opined that the Veteran’s headaches were not at least as likely as not (at least a 50 percent probability) proximately due to, or the result of his sinusitis, the examiner based that opinion on a lack of a diagnosis of a chronic headache syndrome. However, as previously discussed, the Veteran does suffer from headaches which, along with facial tenderness and sinus fullness, the October 2018 examiner found to be due to the Veteran’s sinusitis. While the October 2018 examiner’s rationale was not extensive, reading the opinion as a whole and in the context of the evidence of record, the examiner found that the nature of the Veteran’s symptoms made it likely that his sinusitis caused his headaches. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner “did not explicitly lay out the examiner’s journey from the facts to a conclusion,” did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Thus, the evidence of record is at least evenly balanced as to whether the Veteran’s headaches are caused by his service connected sinusitis. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for headaches secondary to sinusitis, on a causation basis, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Ratings Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staged” ratings. Hart v. Mansfield, 21 Vet. App. 505 (2008). Sinusitis The Veteran’s sinusitis is currently rated 30 percent disabling under DC 6513 applicable to chronic maxillary sinusitis set forth in a General Rating Formula under 38 C.F.R. § 4.97. Under that formula, a noncompensable rating is warranted where the sinusitis is detected by X-ray only, a 10 percent rating is warranted for one or two incapacitating episodes of sinusitis per year requiring prolonged (lasting four to six weeks) antibiotic treatment; or three to six non-incapacitating episodes of sinusitis per year characterized by headaches, pain, and purulent discharge or crusting. A 30 percent rating requires three or more incapacitating episodes of sinusitis per year requiring prolonged (lasting four to six weeks) antibiotic treatment, or more than six non-incapacitating episodes of sinusitis per year characterized by headaches, pain, and purulent discharge or crusting. A 50 percent rating is assigned following radical surgery with chronic osteomyelitis, or for near-constant sinusitis characterized by headaches, pain, and tenderness of the affected sinus, and purulent discharge or crusting after repeated surgeries. A Note to the General Rating Formula provides that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. March 2016 private treatment notes indicate that the Veteran reported sinus problems which have been occurring for 2 weeks with associated ear drainage, decreased hearing, runny nose and sneezing. A November 2017 DBQ indicated that the Veteran’s sinusitis affected his maxillary and frontal sinuses, and included symptoms of pain and tenderness of the affected sinus, purulent discharge, and crusting. The Veteran did not report non-incapacitating episodes of sinusitis or incapacitating episodes. The Veteran had had sinus surgery, but no repeated sinus related surgical procedures. The Veteran did not have loss of part of the nose or other scars of the nose exposing both nasal passages, causing loss of part of one ala, or causing any other disfigurement. The physician opined that the Veteran’s sinusitis did not impact his ability to work. A January 2018 DBQ indicated that the Veteran required continuous medication for the control of his sinusitis, and that he suffered from maxillary, frontal, and ethmoid sinusitis. The examiner noted headaches, episodes of sinusitis, and near constant sinusitis, all attributable to chronic sinusitis. The Veteran reported 7 non-incapacitating episodes of sinusitis characterized by headaches, pain, and purulent discharge or crusting in the past 12 months, and 1 incapacitating episode of sinusitis requiring prolonged antibiotics treatment in the past 12 months. The examiner noted that the Veteran underwent radical (open sinus) surgery in 1979 or 1980, but chronic osteomyelitis did not follow the surgery. The DBQ reflected a greater than 50 percent obstruction of the nasal passage of both sides due to rhinitis, and permanent hypertrophy of the nasal turbinates, but no complete obstruction of one side of the nasal passage due to rhinitis, and no nasal polyps. The examiner noted chronic headaches, vertigo, and bilateral ear pain due to the Veteran’s sinusitis. The examiner opined that the Veteran’s chronic sinusitis would prevent him from working due to headaches and inner ear imbalances. A February 2018 DBQ reflected that the Veteran is treated for sinusitis every 1 or 2 months for a flare-up, and is provided steroid injections and antibiotics for several days. He reported coughing and congestion, watering eyes and sneezing. The Veteran also reported headaches in the frontal area, ear aching, and occasional nosebleeds. The examiner noted the Veteran’s reports of pain, tenderness, and headaches due to chronic sinusitis, and noted that the Veteran had 7 or more non-incapacitating episodes of sinusitis in the past 12 months, but no incapacitating episodes. The DBQ did not reflect any other pertinent physical findings, complications, conditions, signs or symptoms related to the Veteran’s sinusitis. June 2018 VA treatment records reflect the Veteran was diagnosed with 5 to 6 episodes of sinus infections, and has been prescribed 3 courses of prednisone, and 6 courses of antibiotics. An October 2018 DBQ reflected that the Veteran underwent balloon dilation of his bilateral nasofrontal and sphenoethmoidal recesses and maxillary sinus ostia, ablation of his inferior turbinates, and resection of his concha bullosa for recurrent barosinusitis with chronic sinus headaches in June 2018. The examiner noted that the Veteran was prescribed Zyrtec and had frontal sinusitis and rhinitis. The DBQ indicated that the Veteran had 4 non-incapacitating episodes of sinusitis, and no incapacitating episodes of sinusitis in the past 12 months. The examiner reported that the Veteran did not have greater than a 50 percent obstruction of the nasal passage on both sides due to rhinitis, nor complete obstruction of the right or left side, and there were no nasal polyps noted, and no permanent hypertrophy of the nasal turbinates. The DBQ indicated that the Veteran had class III morbid obesity related to his sinusitis. The examiner stated that the Veteran’s sinusitis did not impact his ability to work. The evidence reflects that the Veteran’s sinusitis symptomatology more nearly approximates near constant sinusitis characterized by headaches, pain, and tenderness of the affected sinus, and purulent discharge or crusting after repeated surgeries as contemplated by a 50 percent disability rating. The January 2018 DBQ indicated that the Veteran reported 7 incapacitating episodes of sinusitis characterized by headaches, pain and purulent discharge or crusting in the past 12 months, and the examiner noted that the Veteran’s chronic sinusitis headaches prevent him from working. Additionally, the February 2018 and October 2018 DBQs reflected chronic sinus headaches, pain and tenderness, and the evidence reflects the Veteran underwent multiple surgeries to treat his sinusitis. The Veteran’s sinusitis symptomatology thus more nearly approximates that which is contemplated by a 50 percent disability rating under DC 6513, the highest disability rating available under that diagnostic code, for the entire period on appeal. As to consideration of referral for an extraschedular rating, the Veteran has not contended, and the evidence does not reflect, that he has experienced symptoms outside of those listed in the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (the Board is not obligated to analyze whether remand for referral for extraschedular consideration is warranted if “§ 3.321(b) (1) [is] neither specifically sought by [the claimant] nor reasonably raised by the facts found by the Board” (quoting Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff’d, 226 Fed. Appx. 1004 (Fed. Cir. 2007)). For the foregoing reasons, a 50 percent rating is warranted for the Veteran’s service connected sinusitis. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. REASONS FOR REMAND The AMA provides that remands are warranted based on VA’s duty to assist prior to the Agency of Original Jurisdiction’s (AOJ) decision. 38 U.S.C. § 5103A(f). The following claim is remanded based on VA’s duty to assist prior to the AOJ decision. Depression The RO’s favorable findings, by which the Board is bound, indicate that the Veteran has been diagnosed with unspecified depression. The Veteran’s service treatment records do not reflect any treatment for, or complaints of symptomatology associated with depression, and his April 1969 medical examination report upon discharge is normal. November 2016 VA treatment records indicate that the Veteran reported a depressed mood for 3 to 4 years, with symptoms occurring several times per week. January 2017 VA mental health treatment records indicate the Veteran reported always having “some depression”, but stated that he has always tried to cope with it on his own. An October 2018 VA mental health note reflected that the Veteran described his mood as depressed, stating that he was easily irritable with crying spells about twice a week. He also reported feelings of hopelessness and worthlessness. The psychiatrist diagnosed anxiety and depression. A November 2019 DBQ indicated that the Veteran had a diagnosis of depression, and the psychologist noted that the Veteran reported mental health symptoms in service in 1963. He stated that he “would get down” and not say much to others while stationed in Germany. The Veteran reported an “ok” mood currently, but stated that he still has anxiety, and reported feeling easily irritable, fidgety, and short tempered. The psychologist opined that the Veteran’s depression was less likely than not (less than a 50 percent probability) proximately due to, or the result of the Veteran’s service connected bilateral hearing loss or tinnitus. The psychologist stated that the Veteran’s reports of developing mild and transient symptoms of down moods during service do not meet the criteria for depressive disorder, noting that these were mild symptoms for which he did not seek treatment. The psychologist noted that the Veteran’s depression worsened in the last year due to non-service related issues of medical issues and mobility issues. In a March 2020 letter, the Veteran’s attorney stated that while the November 2019 psychologist opined as to whether the Veteran’s depression was related to his service connected bilateral hearing loss and tinnitus, she failed to provide an opinion as to whether it was directly related to service, or related specifically to his service connected sinusitis. The attorney also indicated that the psychologist failed to address whether the Veteran’s service connected disabilities aggravated his depression. Finally, the attorney stated that the psychologist failed to acknowledge the Veteran’s reports of behavioral health treatment during service when providing her opinion. Unfortunately, a remand is necessary to adequately adjudicate the Veteran’s claim for service connection for depression considering the contentions of the Veteran’s attorney. While the Board finds that the November 2019 examiner did address the Veteran’s reports of symptoms of depression during service and opined as to whether they were related to his service connected bilateral hearing loss and tinnitus, the examiner failed to opine as to whether the Veteran’s depression was directly related to service. Additionally, the Board finds the November 2019 examiner’s opinion inadequate as the examiner also failed to opine as to whether the Veteran’s depression was caused or aggravated by his service-connected sinusitis. Therefore, a remand for further development is necessary. TDIU The issue of entitlement to a TDIU is a potential part of an initial rating claim when such claim is expressly raised by the Veteran, or reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). The January 2018 examiner expressly stated that the Veteran’s chronic sinusitis would prevent him from working due to headaches and inner ear imbalances. Given the evidence of unemployability due to sinusitis, the issue of entitlement to a TDIU was raised as part and parcel of the claim for a higher initial rating for sinusitis. A TDIU is provided where the combined schedular evaluation for service-connected disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16(a). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment, by reason of his or her service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under 38 C.F.R. § 4.16(a), if there is only one such disability, it must be rated at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). However, for those veterans who fail to meet the percentage requirements set forth above in accordance with 38 C.F.R. § 4.16 (a), total disability ratings for compensation may nevertheless be assigned on an extra-schedular basis by VA’s Director of Compensation Service when it is found that the service-connected disabilities are sufficient to produce unemployability. 38 C.F.R. § § 4.16 (b). In light of the decision herein, the Veteran’s sinusitis is rated as 50 percent disabling. He is also service connected for tinnitus, rated 10 percent disabling, and bilateral hearing loss rated noncompensable. Therefore, the Veteran has a 60 percent disability rating, and does not currently meet the criteria for consideration for a TDIU on a schedular basis. See 38 C.F.R. § 4.16 (a). None of the exceptions in 38 C.F.R. § 4.16(a)(1)-(5), for disabilities of extremities, resulting from a common etiology or single accident, affecting a single body system, injuries incurred in action, and incurred as a prisoner of war. However, under 38 C.F.R. § 4.16 (b) all cases where the veteran is unable to secure or follow a substantially gainful occupation because of a service-connected disability should be referred to the Director of Compensation Service. In Ray v. Wilkie, 31 Vet. App. 58, 66 (2019), the Court held that the initial extraschedular referral decision under § 4.16(b) should address whether there is “sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities.” The medical opinion that the Veteran’s chronic sinusitis would prevent him from working due to headaches and inner ear imbalances substantiates a reasonable possibility that a veteran is unemployable by reason of his service-connected sinusitis. The standard for remand for referral to the Director under 38 C.F.R. § 4.16(b) has thus been met. The failure to refer the issue of entitlement to a TDIU to the Director of Compensation in these circumstances is an error “in satisfying a regulatory or statutory duty, if correction of the error would have a reasonable possibility of aiding in substantiating” the claim. 38 C.F.R. § 20.802(a). However, the AOJ must first implement the Board’s decision granting service connection for OSA and headaches herein and if the Veteran meets the schedular standard, it should adjudicate the issue of entitlement to a TDIU on a schedular basis and remand for referral to the Director only for any period during which the Veteran does not meet the schedular criteria of 38 C.F.R. § 4.16(a). Prior to adjudication any appropriate development should be conducted, to include furnishing the formal application form (VA Form 21-8940). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination (to include via telehealth if appropriate) with an appropriate psychiatrist/psychologist to determine the nature and etiology of his unspecified depression. The psychiatrist/psychologist must opine whether the Veteran’s unspecified depression is at least as likely as not (at least 50 percent probability) related to service, to include the Veteran’s reports of isolating and feeling “down” during service. The psychiatrist/psychologist must also opine as to whether the Veteran’s unspecified depression is at least as likely as not (at least a 50 percent probability) either caused or aggravated by his service-connected sinusitis. The Veteran’s claims file must be made available to and reviewed by the psychologist/psychiatrist. The psychologist/psychiatrist is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. All opinions expressed must be accompanied by a complete rationale. 2. After implementing the Board’s decision granting service connection for OSA and headaches, and conducting any appropriate development to include furnishing the formal application form (VA Form 21-8940), adjudicate the issue of entitlement to a TDIU on a schedular basis under 38 C.F.R. § 4.16(a) for any period for which the Veteran meets the schedular criteria and refer the issue of entitlement to a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b) to the Director of Compensation Service for any period for which he does not meet the schedular standard. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Maddox, 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.