Citation Nr: 21061549 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 14-37 665 DATE: October 4, 2021 ORDER Entitlement to an increased evaluation in excess of 70 percent for right eye injury with macular scar and optic neuropathy and bilateral eye glaucoma and cataracts is dismissed. Entitlement to an increased evaluation in excess of 30 percent for tension headaches is dismissed. REMANDED Entitlement to an increased evaluation in excess of 50 percent for persistent depressive disorder is remanded. Entitlement to service connection for obstructive sleep apnea to include as due to service-connected disabilities is remanded. Entitlement to total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT 1. On July 7, 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of the appeal of the claims for increased ratings for a right eye disability and tension headaches was requested. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the Veteran's claim for an increased evaluation in excess of 70 percent for right eye injury with macular scar and optic neuropathy and bilateral eye glaucoma and cataracts have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for withdrawal of the appeal of the Veteran's claim for an increased evaluation in excess of 30 percent for tension headaches have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in active-duty service with the Army from July 1978 to October 1979. This matter is on appeal from an October 2012 rating decision. The Veteran was afforded a May 2018 hearing before a Veterans Law Judge (VLJ); a transcript of the hearing has been associated with the claims record. In a November 2018 Board decision, the Board an increased evaluation in excess of 50 percent for the Veteran's persistent depressive disorder. The Veteran appealed his denial to the Court of Appeals for Veterans Claims (CAVC or the Court). The Court, in a September 2021 decision, vacated and remanded the issues to the Board for re-adjudication. Dismissal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. Except for appeals withdrawn on the record at a hearing, withdrawal must be in writing. 38 C.F.R. § 20.204 (b)(1). The Board notes that the November 2018 Board decision had remanded the Veteran's claims for an increased evaluation for a right eye injury and tension headaches; service connection for obstructive sleep apnea; and entitlement to TDIU. In a July 7, 2021 correspondence from the Veteran's representative, the representative stated that the Veteran withdrew his claims for increased rating for a right eye injury and tension headaches. As such, the Veteran has withdrawn this appeal for the issues of an increased rating for a right eye injury and tension headaches. The current issues before the Board are entitlement to service connection for obstructive sleep apnea; entitlement to an increased evaluation in excess of 50 percent for persistent depressive disorder; and entitlement to TDIU. REASONS FOR REMAND The Board finds that remand is warranted for additional development. Concerning the Veteran's claim for an increased evaluation for persistent depressive disorder; in the September 2021 CAVC decision, the Court found the November 2018 Board decision erred by failing to ensure VA's duty to assist the Veteran in obtaining medical records as well as failing to provide an adequate statement of reasons and bases. The Court decision noted that the Veteran testified in May 2018 of receiving VA medical center (VAMC) treatment for his psychiatric disorder on a monthly basis; however, the Court noted that at the time of the Board's decision, the Veteran's VAMC records dated only up until January 2018. As such, the Court instructed the Board to obtain and associate the Veteran's VAMC records since January 2018. The Court next noted that the Veteran reported an August 2012 hospitalization for suicidal thoughts; the Court found that review of the record does not reflect any efforts to notify the Veteran of these records to provide authorization to release the relevant records. The Board notes that during the pendency of the appeal, updated VAMC records have been associated with the claim's records; however, as noted by the Court, no efforts have been made to notify the Veteran and to obtain authorization to release records relating to the Veteran's August 2012 hospitalization. As such, the Board finds remand is warranted to obtain outstanding records to associate with the claims record. Obstructive sleep apnea The Veteran has asserted his obstructive sleep apnea is related to active-duty service as well as stating it as due to his service-connected disabilities. The Veteran has testified in May 2018 that he was diagnosed in March 1983 and that his symptoms arose during service. The Board notes that in August 2011 the Veteran stated that his sleep apnea was due to exposure to explosions and gunfire in service and that he eventually went to a VAMC in Richmond for his symptoms where he was diagnosed with sleep apnea and given treatment for the past 10 years. The Board notes that review of the record does not show whether the Veteran was afforded a sleep study at the VAMC in Richmond have been associated with the claims record. The Board next notes that the November 2018 Board decision remanded the issue to obtain a VA examination and opinion on the nature and etiology of the Veteran's sleep apnea. The Veteran was afforded a September 2019 VA examination. The examiner gave a negative etiology opinion that the Veteran's sleep apnea was not related to his active-duty service. However, the Board notes that the examiner did not discuss the Veteran's August 2011 statements regarding exposure to explosions and gunfire or provide an opinion on causation or aggravation in relation to the Veteran's service-connected disabilities as requested by the November 2018 Board remand. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that where remand instructions are not followed, the Board errs as a matter of law when it fails to ensure compliance). As such, the Board finds that remand is also warranted for compliance with the November 2018 Board instructions. As the decision on the remanded issues of the increased rating and service connection claim could impact the decision on the Veteran's TDIU claim, the issues are inextricably intertwined. Thus, a remand of the TDIU claim is also required. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated and outstanding treatment records. 2. Request that the Veteran complete a VA Form 21-4142 and provide the names and addresses of any and all healthcare providers who provided treatment for the Veteran's claimed psychiatric disorder and obstructive sleep apnea to include the records from the August 2012 hospitalization and VAMC Richmond visit that diagnosed the Veteran with sleep apnea. (a.) After acquiring this information and obtaining any necessary authorization, obtain and associate any pertinent records with the claims folder. Make two requests for the authorized records from any identified provider, unless it is clear after the first request that a second request would be futile. All attempts to procure such records must be documented within the claims file. 3. Obtain a VA medical opinion on the Veteran's claimed obstructive sleep apnea. The record and a copy of this remand must be made available to the examiner. If the examiner determines that an examination of the Veteran is necessary to provide the requested opinion with rationale, then such examination should be scheduled. The VA examiner should address the following: (a.) Is it at least as likely as not (a probability of 50 percent or greater) that the Veteran's obstructive sleep apnea is etiologically related to the Veteran's active-duty military service? (b.) Is it at least as likely as not (50 percent probability or more) that the Veteran's obstructive sleep apnea is due to the Veteran's service-connected disabilities? (c.) Is it at least as likely as not (50 percent probability or more) that the Veteran's obstructive sleep apnea is aggravated by the Veteran's service-connected disabilities? (d.) In addressing any of the above, the VA examiner should note that "Aggravation" is defined as any worsening beyond the natural progression of the disability. The examiner should establish a baseline level of all diagnosed disabilities prior to aggravation. If the examiner is unable to establish a baseline, the examiner should provide specific explanation or rationale as to why. (e.) The examiner is advised that the Veteran is competent to report in-service events and treatment, and the Veteran's symptoms and history, and such reports and assertions must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. (f.) The examiner is asked to address the Veteran's submitted lay statement to include the August 2011 statement; the May 2018 hearing testimony; and the September 2019 VA examination findings. (g.) If the examiner cannot provide the above opinions, the examiner is advised that he/she must explain why the requested opinion cannot be provided (i.e., because the limits of medical knowledge had been exhausted or because further information to assist in making the determination is needed, such as additional records and/or diagnostic studies). (h.) If the examiner cannot provide an answer because further information is needed to assist in making the determination, all reasonable steps to obtain the missing information should be exhausted before concluding that the answer cannot be provided. (i.) The opinions should include a discussion of any pertinent studies or medical literature, as well as pertinent evidence on file. (j.) If the VA examiner is unable to provide an opinion without resorting to speculation, he or she should explain whether the inability is due to the limits of the examiner's medical knowledge, medical knowledge in general or there is evidence that, if obtained, would permit the opinion to be provided. A clearly stated rationale for any opinion offered should be provided. 4. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Yang, Attorney-Advisor 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.