Citation Nr: 21004728 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 12-18 993 DATE: January 28, 2021 ORDER 1. Entitlement to a rating in excess of 50 percent for a depressed mood disorder is denied. 2. Entitlement to a rating in excess of 30 percent for obstructive sleep apnea (OSA) is denied. REMANDED 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s depressed mood disorder is not shown to have resulted in impairment greater than occupational and social impairment with reduced reliability and productivity; occupational and social impairment with deficiencies in most areas due to psychiatric symptom is not shown. 2. The Veteran’s OSA has been manifested by persistent daytime hypersomnolence; use of a breathing assistance device such as continuous airway pressure (CPAP) machine is not shown to be required. CONCLUSIONS OF LAW 1. A rating in excess of 50 percent for a depressed mood disorder is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.3, 4.130, Diagnostic Code (Code) 9435. 2. A rating in excess of 30 percent for OSA is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.97, Code 6847. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from October 1999 to September 2002. These matters are before the Board on appeal from a March 2010 rating decision, which continued a 30 percent rating for OSA, granted service connection for a mood disorder, rated 30 percent effective June 26, 2009, and denied a TDIU rating. Interim [May 2012 and September 2017] rating decisions increased the initial rating for mood disorder to 40 percent and 50 percent, respectively, also effective June 26, 2009. In October 2014, a videoconference Board hearing was held before a no-longer-serving Veterans Law Judge (VLJ). A transcript is in the claims file. In October 2020 the Veteran was offered an opportunity for another Board hearing before a VLJ who would decide his appeal. He did not respond; as he was advised, the Board is proceeding under the assumption that he does not want another hearing. In February 2015, August 2017, and April 2019, the matters were remanded for additional development. Increased Rating Disability ratings are determined by applying the criteria set forth in 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. With the initial rating assigned upon a grant of service connection, separate (staged) ratings may be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Reasonable doubt regarding degree of disability is to be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. 1. Entitlement to a rating in excess of 50 percent for a depressed mood disorder is denied. In a June 2009 statement, the Veteran stated that his depression was so severe that he struggled with impulse control, neglect of personal appearance and hygiene, and inability to establish and maintain effective relationships. He reported having short term memory impairment, difficulty understanding complex commands, chronic sleep impairment, and difficulty making decisions. In a December 2009 statement, the Veteran’s mother stated that he struggled with irritability, anxiety, and insomnia since service. She stated that interacting with family members was challenging at times because he angered easily and struggled with impulse control. She stated that his ability to concentrate and express clear thought was greatly diminished, and that his struggles with impulse control affected his marriage. She stated that he had difficulty with supervisors and interacting appropriately when given instructions he dislikes, and had been fired several times. On March 2010 VA examination, the Veteran reported having a prescription for bupropion, and had some benefit from this in combination with significant caffeine consumption and use of nicotine. He reported depression, poor impulse control, neglect of personal appearance, short-term memory loss, difficulty understanding complex commands, and difficulties with relationships. He reported he was divorced, with no subsequent romantic relationships. He reported having one friend, and contact with that friend was always at the friend’s initiative. He reported that he was previously employed in a temporary help service but lost that employment when stabbed by a neighbor, who worked for the same service. He had worked in factories and roofing. He reported that his employment instability was due to excessive absenteeism because of insufficient energy, which he attributed to sleep apnea. On mental status examination, the Veteran was casually dressed and seemed appropriately groomed but displayed noticeable body odor. He appeared to be underweight. His responses to questions were coherent and goal directed. There was no indication of impaired thought process. No reports of delusions or hallucinations were given. His mood was described as disinterested and distant. He denied depression, but described himself as apathetic, complacent, or emotionally numb. He reported low motivation and low libido. He reported seldom crying; he denied having suicidal ideation or history of suicidal attempts. He denied significant anxiety symptoms. He denied illicit drug use. His symptoms were considered most consistent with a depressive disorder diagnosis; he also described a somewhat chaotic childhood and some behavioral disturbance, including antisocial or impulsive behaviors preceding his military service. The examiner opined that personality disorder symptoms contributed to the Veteran’s functional impairment, and attributed about half of his impairment to the depressive symptoms and the remainder to a personality disorder. The diagnosis was mood disorder – depressed, and personality disorder not otherwise specified. Based on this evidence, the March 2010 rating decision on appeal granted service connection for mood disorder, depressed, rated 30 percent effective June 26, 2009. An August 2010 discharge summary reflects that the Veteran was hospitalized for 6 days for increased somnolence due to depression and an exacerbation of dysthymia and depression. In an October 2010 statement, the Veteran’s friend of 20 years stated that he had been going to the Veteran’s home every day since August to ensure he wakes up to eat, bathe, and handle his personal affairs. The friend stated that he had witnessed the Veteran sleep for 4 days straight, and that he was very difficult to wake up. The friend stated that the Veteran would get excessively paranoid, and that it was difficult to hold a conversation with him at times, as he tended to trail off and talk about nonsense. The friend described the Veteran’s overall attitude as severely depressed, and socially withdrawn, quick to anger, and very confrontational. The friend stated that the Veteran seemed different from the person he had befriended 20 years earlier. In a June 2011 statement, the Veteran’s mother, a licensed practical nurse with experience caring for people with disabilities including mental illness, stated that his recurring symptoms included anxiety, impulse control, extreme irritability leading to verbal and physical aggression, inability to maintain employment due to difficulty managing stress occurring with workplace rules and relationships, difficulties with friendships and family relationships, racing thoughts, sleep disturbances, and at times grandiose and delusional statements. She stated that he had episodes of pacing for hours due to extreme anxiety and irritability. She stated that he was able to gain employment but keeping it was a challenge, and most of his employment since service had been in temporary positions through an employment service. She stated that he had been physically abusive to other family members, including his ex-wife. Based on this evidence, a May 2012 rating decision granted an increased initial rating of 40 percent for mood disorder, depressed, effective June 26, 2009. The 40 percent rating was based on an overall evaluation of 70 percent, divided in half (and rounded up) based on the March 2010 VA examiner’s opinion that one-half of the Veteran’s impairment was due to non-service-connected personality disorder. In two separate July 2012 statements, the Veteran argued that he did not exhibit mental health symptoms prior to service, and that private and VA treatment records did not support a diagnosis of a personality disorder. At the October 2014 Board hearing, the Veteran testified that he had served about a month of jail time for assaulting his uncle in 2010, and he continued to lose his temper at times. He testified that his mood disorder was “kind of an up and down thing” that runs in cycle; that he has days when he does not get out of bed; and that he had trouble keeping jobs due to his mood disorder. He testified that he was not currently working, had applied for a few jobs, and had tried going to school but had a rough time; he withdrew the previous semester due to personal issues and poor grades. He testified that he received support through vocational rehabilitation, through which he attended school. He reported having anxiety attacks. On September 2016 VA examination, the Veteran reported that a dating relationship had ended a couple of weeks earlier and he remained sad about it. He did not belong to any clubs or organizations and did not attend a church. He kept in contact with a couple of friends, but did not do much in terms of activities or socializing. He reported hobbies of programming and learning things, and that he did not feel close to family members. He had no difficulty maintaining personal grooming and hygiene, no problems with driving, and was able to complete all activities of daily living independently. He reported that he had frequent tardiness and absences from work due to poor sleep and depression, and had a similar pattern of problems with attendance in prior jobs and with schooling. His last mental health treatment was in November 2012, with no follow up since then, and no current prescriptions. His reported his symptoms included depressed mood, anxiety, chronic sleep impairment, flattened affect, disturbances of motivation and mood, and difficulty establishing and maintaining effective work and social relationships. On mental status examination, the Veteran was neatly groomed and appropriately dressed. His behavior, mannerisms, and psychomotor activity were unremarkable. He was fully oriented and alert. His speech was spontaneous, coherent, and goal directed. His attitude was cooperative. His affect was flat, and mood was sad due to his recent breakup. He reported feeling anxious in large crowds, but was able to go shopping. He became easily annoyed and had had anger outbursts toward family and coworkers. He denied phobias or panic attacks. He denied thoughts of harm to himself or others. There was no obsessive or ritualistic behavior. His attention and memory were intact. There were no signs of a thought disorder, hallucinations, or delusions. The diagnoses included depressive disorder due to sleep apnea, and unspecified personality disorder. The examiner opined that, given the Veteran’s report that he had not followed up with treatment for his sleep apnea and had not been treated for depression in several years, some level of improvement in mood symptoms could be expected if he were to engage in treatment; the Veteran indicated it was unlikely he would pursue mental health treatment. The examiner opined that the personality disorder is less likely than not (less than 50 percent probability) incurred in or caused by any in-service injury, event, or illness, and is not secondary to depressive disorder or sleep apnea. The examiner opined that unspecified personality disorder includes a pattern of detachment from social relationships, a restricted range of emotional expression, instability in interpersonal relationships, impulsive behaviors, disregard for the rights of others, and episodic anger outbursts out of proportion to precipitating events; whereas symptoms due to depressive disorder included feeling depressed most days, diminished interest in activities, poor sleep, and low energy. The examiner opined that the Veteran’s mental diagnoses result in occupational and social impairment with reduced reliability and productivity, and attributed 50 percent of the impairment to each of the diagnoses. Based on this evidence, a February 2017 rating decision granted an increased initial rating of 50 percent for mood disorder, effective June 26, 2009. In an October 2017 addendum opinion, the September 2016 VA examiner stated that no changes from the examination report were indicated regarding diagnoses or conclusions related to level of functional impairment. The examiner noted that the Veteran had an initial psychiatry appointment in April 2017, receiving diagnoses of major depressive disorder and attention deficit hyperactivity disorder, predominantly inattentive type; methylphenidate was prescribed, but an antidepressant was not prescribed. On follow-up appointments in May and August 2017, he denied symptoms of depression or anxiety; diagnoses listed were depressive disorder unspecified and attention deficit hyperactivity disorder, predominantly inattentive; methylphenidate was prescribed again. The examiner noted that on two depression screens in 2017, the Veteran did not endorse any depression symptoms. Regarding what specific evidence and rationale supports the diagnosis of an unspecified personality disorder, the examiner cited the DSM-5 definition of a personality disorder. The examiner opined that the use of the diagnosis of unspecified personality disorder on examination was intended to describe the Veteran’s history of a pattern of detachment from social relationships, a restricted range of emotional expression, instability in interpersonal relationships, impulsive behaviors, disregard for the rights of others, and episodic anger outbursts out of proportion to precipitating events. The examiner opined that these type of difficulties began prior to the Veteran’s military service time, citing that he left school in his freshman year of high school, was involved in an altercation with his stepfather as a teenager that resulted briefly in juvenile detention and his being sent to the state boys’ training school, was incarcerated during military service due to a pattern of misconduct and multiple disciplinary actions, and was jailed after slicing his uncle’s throat with a knife in 2010. The examiner opined that the absence of a personality disorder [diagnosis] being included in other mental health documents could be the result of mental health treatment providers not having access to the VA medical records that provide a broader history, and that the focus of mental health treatment providers tends to be on presenting complaints of distress; individuals with personality disorders rarely have insight into the impact of this disorder on aspects of their life. The examiner noted that August 2003 and November 2003 private treatment records note an impression of schizophreniform disorder, which the DSM-5 defines as including two or more of the following: delusions, hallucinations, disorganized speech, grossly disorganized or catatonic behavior, and/or negative psychotic symptoms such as diminished emotional expression or avolition. The examiner opined that no progress note in the VA medical record documents such symptoms. Treatment records reflect symptoms largely similar to those described on the VA examinations. The Board notes the previous remand instructions for the AOJ to obtain police reports. After the Veteran provided the name of the specific police department and authorization to release records, the AOJ issued December 2017 and February 2020 letters requesting the records, with no response. A March 2020 AOJ letter to the Veteran indicated that the police records could not be located, and are therefore unavailable for review. Mood disorders are rated under 38 C.F.R. § 4.130, Code 9435 and the General Rating Formula for Mental Disorders. A 50 percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Code 9435. The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant’s social and work situation. Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002). Because “[a]ll nonzero disability levels [in § 4.130] are also associated with objectively observable symptomatology,” and the plain language of this regulation makes it clear that “the veteran’s impairment must be ‘due to’ those symptoms,” “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). “[I]n the context of a 70[%] rating, § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” Id. at 117. Although a veteran’s symptoms are the “primary consideration” in assigning a rating under § 4.130, the determination as to whether the veteran is entitled to a 70% disability evaluation “also requires an ultimate factual conclusion as to the veteran’s level of impairment in ‘most areas.’” Id. at 118. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remissions. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126(b). The Board notes that early in the pendency of the appeal, the 30 percent rating, revised to 40 percent, and ultimately to 50 percent, was assigned, in part, based on findings that while the Veteran’s overall mental impairment may have been greater, a portion of his impairment was attributable to his non-service-connected personality disorder, and was therefore not considered in the rating. It is not in dispute that service connection for a personality disorder has not been established. As noted above, under Mauerhan, if symptoms/impairment attributable both to a service-connected psychiatric disability and a non-service-connected psychiatric disability are not clearly attributable solely to the non-service-connected disability, the symptoms/impairment must be considered in rating the service-connected disability. While the medical opinions in the record suggest that some of the Veteran’s symptoms are attributable to his personality disorder, there is no medical opinion in the record that clearly delineates (with sufficient explanation of rationale) which of his symptoms (throughout the period of consideration) are due to his service-connected depressive disorder and which are due to his personality disorder. The Board has determined that yet another remand for a medical opinion – as such delineation of symptoms, which is a medical question –is not necessary; strictly for purposes of this appeal, the Board has resolved any conflict in the matter by attributing all psychiatric symptoms shown during the pendency of the appeal to the Veteran’s service-connected depressive disorder. Because a 50 percent rating is now assigned for the Veteran’s psychiatric disability throughout, the question remaining is whether at any time during the evaluation period the criteria for a higher (70 or 100 percent) rating were met. The evidence of record does not show that manifestations of, or impairment due to, the Veteran’s mood disorder met (or approximated) a level of impairment reflective of occupational and social impairment with deficiencies in most areas at any time under consideration, so as to meet the criteria for the next higher (70 percent) rating). Treatment records and examination reports show that throughout he has tended adequately to activities of daily living and has consistently denied suicidal ideation. No treatment record or examination report during the appeal period shows a distinct period when there were symptoms of the nature and gravity of those listed in the criteria for a 70 percent rating, or any unlisted symptoms of equivalent nature and severity. While he has reported isolating himself socially, he nonetheless maintained relations with close family (his mother) and a couple of friends, including his best friend who reported visiting him regularly. While he has reported increased irritability and occasional impaired impulse control, there is no evidence of a cognitive/thought disorder or impaired insight or judgment. He continued to pursue his education (with stops and starts) and employment throughout. There is no evidence of daily living activities impairment. Notably, he has consistently declined mental health treatment and psychotropic medications, suggesting that he functions adequately without needing such. This disability picture presented does not reflect that due to mood disorder symptoms he has occupational and social impairment with deficiencies in most areas; instead, it reflects a reasonably well-functioning individual, with no deficiency in daily-activity functioning, and ability to maintain familial relationships and at least one close friendship. The September 2016 VA examiner opined that the Veteran’s mental disorder resulted in occupational and social impairment with reduced reliability and productivity. Such findings are consistent with a level of impairment no greater than that associated with the currently-assigned 50 percent rating; the criteria for the next higher (70 percent) rating are not shown to have been met (or approximated) at any time. The Board notes the lay statements submitted by the Veteran in support of this claim. They describe the types of problems that are associated with his mood disorder. The disability picture presented by his own descriptions is encompassed by the criteria for the 50 percent rating assigned; even his own lay statements do not support that an increased rating has been warranted at any time. In Thun v. Peake, 22 Vet. App. 111, 115 (2008), the Court of Appeals for Veterans Claims (CAVC) stated that 38 C.F.R. § 3.321(b)(1) provides for referral for consideration of an extraschedular rating where application of the regular schedular standards is impractical because the disability is so exceptional or unusual due to such related factors as marked interference with employment or frequent periods of hospitalization. Under Thun, the first step in the analysis requires a comparison of the level of severity and symptomatology of the disability with the rating criteria for that disability. The second step under Thun requires a determination as to whether the Veteran’s exceptional symptomatology causes marked interference with employment, frequent periods of hospitalization, or other related factors. The Board finds that the Veteran’s psychiatric symptoms are appropriately evaluated under the schedular rating criteria, and are not exceptional. His symptoms, and the impairment they cause, fall well within the listed criteria for rating psychiatric disabilities; they are not shown to have resulted in marked interference with employment or frequent periods of hospitalization (or any other factors of equivalent gravity. Therefore, referral for consideration of an extraschedular rating is not warranted. Considering the foregoing, the Board finds that the preponderance of the evidence is against this claim. Therefore, the appeal in this matter must be denied. 2. Entitlement to a rating in excess of 30 percent for OSA is denied. On February 2010 VA examination, the examiner noted that a March 2000 sleep study showed mild OSA, and later that year the Veteran underwent advancement genioplasty which he later reported helped alleviate his snoring. A September 2004 sleep study included an assessment of OSA, with symptoms not completely gone after surgery. More recent treatment records include continued reports of sleep difficulties and no use of CPAP or BiPAP machine. The Veteran reported that his sleep apnea was the same as always: he snored a lot, was tired a lot, and had an erratic sleep schedule. He reported feeling tired all the time and taking naps 4 to 5 days per week. He denied use of CPAP, BiPAP, sleeping pills, or alcohol. The diagnosis was OSA, untreated, with poor sleep hygiene pattern including frequent naps and rotating sleep-wake cycles. On March 2010 VA mental health examination, the examiner noted that a previous sleep study showed oxygen saturations between 95% and 97% throughout. The Veteran reported that subsequent sleep studies were suggested or scheduled, but he had avoided them in part because he was concerned that he could lose his disability benefits for sleep apnea, which was his only source of income. He reported that he did not have or use a CPAP or BiPAP. He reported hypersomnia and having no regular sleep pattern; he typically slept for 4 or 5 hour blocks and was awake for between 8 and 9 hours before sleeping again. He reported he also took naps at times. The examiner opined that findings from the most recent sleep study did not suggest significant sleep apnea. Based on this evidence, the March 2010 rating decision on appeal continued a 30 percent rating for OSA. At the October 2014 Board hearing, the Veteran testified that he has attempted to undergo sleep studies through VA, but the test could not be completed because of his sleep habits. He testified he was told that he would have to complete a study before being issued a CPAP machine, and that he had not been given any other type of breathing device. He testified that the last attempt at a sleep study was in 2005 or 2006, and that he felt tired all the time. On September 2016 VA examination, an attempt to schedule a sleep study in September 2010 was noted; the Veteran stated that he had tried doing sleep studies before and could not sleep with the wires on him. The examiner noted that a technician asked the Veteran if he could get the results of a previous study performed in Virginia that was positive for sleep apnea, so a CPAP machine could be issued for him, and the Veteran replied that it did not matter because he would not wear a CPAP machine anyway. He refused another sleep study, and had not been scheduled for one since the September 2010 cancellation. The examiner noted a June 2016 VA treatment record which included “sleep apnea syndromes – unable to wear CPAP per his report” in his list of active problems. On examination, he reported that he was not using a CPAP and that he did not qualify for a CPAP because he was unable to do a sleep test in 2004 or 2007 because he could not fall asleep. He reported feeling fairly tired during the day, some days better than others; he had fallen asleep at work during monthly meetings. He reported having been late to work due to oversleeping, and he had also no-showed to work after waking up late in the day. He reported that his sleep apnea problems had remained stable over time and had not improved or worsened. He did not require continuous medication, a breathing assistance device, or a CPAP machine. His symptoms included persistent daytime hypersomnolence and general irritability due to being tired all the time. In an October 2017 addendum opinion, the September 2016 VA examiner opined that based on his review of the claims file, there were no changes or updates warranted to the conclusions he reached in the September 2016 examination report on the Veteran’s sleep apnea. The examiner opined that, due to a deficiency in the objective knowledge of the current state of the Veteran’s sleep apnea disorder, additional facts from a current full polysomnogram (PSG) sleep study are required to provide evidence of the current status of the disorder to determine if his OSA requires the use of a breathing assistance device such as a CPAP machine, notwithstanding no actual use of one. The examiner stated that the requested opinion could not be provided without resort to speculation. The examiner noted that the Veteran’s last sleep study was many years ago, and could not be relied on for evidence of the Veteran’s current sleep apnea status, and there is no current sleep study to document the present state of the disability. The examiner noted that, in 2004, the Veteran was continuing to complain of sleep apnea symptoms after advancement genioplasty surgery for sleep apnea in late 2000, and use of a CPAP was not recommended at that time. The examiner noted that the Veteran was last seen by a VA Sleep Clinic pulmonologist in September 2004, and at that time only a daytime sleep study was done, which was felt to be inadequate to establish what the Veteran’s sleep apnea status was; he was ordered to have a full PSG sleep study, but failed to get one. The examiner noted that efforts were made again in July and September 2010 to get the Veteran to repeat his full sleep test, but the clinic records show the Veteran stated he could not sleep wearing all those wires and that it did not matter, as he would not use a CPAP machine anyway. The examiner noted that he was then offered a Stardust portable sleep study, which he also declined. The examiner noted that the sleep clinic consult note concludes with the statement, “Vet does not want a sleep study and asked to DC [discontinue] this consult.” The examiner found no further efforts to get the Veteran to repeat a sleep study since the last sleep clinic consult note, in September 2010, and no new evaluation of or intervention for OSA has been done. Treatment records reflect symptoms largely similar to those described on the VA examinations. The Veteran’s obstructive sleep apnea is rated under Code 6847, which provides that a 30 percent rating is warranted for persistent day-time hypersomnolence. A 50 percent rating is warranted when use of a breathing assistance device such as a CPAP machine is required. A 100 percent rating is warranted for chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requires tracheostomy. 38 C.F.R. § 4.100, Code 6847. There is no indication that at any time during the appeal period the Veteran’s sleep apnea required use of a breathing assistance device such as a CPAP machine. The AOJ attempted to schedule the Veteran for further examination to address whether use of a CPAP machine would be required for treatment of his sleep apnea, regardless of whether or not he chooses to use one, but he has repeatedly refused such examination. The nature and degree of treatment required, and severity of disability shown by the throughout the evaluation fall squarely within the criteria for the 30 percent rating that is assigned. The types of impairment he describes are encompassed by the criteria for the 30 percent rating, and do not present a basis for assigning a higher, 50 percent, rating. The criteria for a rating in excess of 30 percent for OSA are not met, and an increased rating is not warranted. REASONS FOR REMAND Entitlement to a TDIU rating is remanded. The schedular requirements for a TDIU rating are met. A review of the claims file shows that the Veteran began training under VA’s Vocational Rehabilitation (Voc Rehab) program in January 2010. While annual reviews and status reports from the Veteran’s Voc Rehab Counselors were added to the record at various times during the appeal period, it does not appear that the AOJ ever attempted to obtain the Veteran’s complete Voc Rehab records. A remand for such development is necessary (they are pertinent evidence constructively of record). Additionally, the record suggests that the Veteran has worked full time at several different jobs for varying periods during the period for consideration. However, the nature and duration of all such employments is unclear, and the Board is unable to determine to what extent he was gainfully employed during the evaluation period. Further development is necessary. The matter is REMANDED for the following: 1. Send the Veteran a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, for completion, with instructions to return the completed form. Also afford the Veteran opportunity to identify or submit any additional pertinent evidence supporting his TDIU claim. Have the Veteran clarify the name/address of each employer, the specific start and end dates for each employment, hours worked, income, and reason for termination (if any) for each position during the appeal period, and to submit an authorization for VA to obtain pertinent records from each employer. Then ask the employers to complete VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits. 2. Also should secure for the record copies of all documents pertaining to the Veteran’s participation in VA’s Voc Rehab program. 3. Arrange for any further development suggested by the responses to the development sought above. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Schechner, 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.