Citation Nr: 21062216 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 17-42 791 DATE: October 6, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to a rating in excess of 20 percent prior to August 5, 2020 for a lumbosacral strain and degenerative arthritis (previously rated as compression fracture of the thoracic vertebrae (T4)) and in excess of 40 percent thereafter is remanded. Entitlement to a total disability rating based upon individual employability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1974 to July 1975. This appeal comes before the Board of Veterans Appeals (Board) from a rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). As an initial matter, the Board notes that the RO granted service connection for an acquired psychiatric disorder in August 2017. This decision is considered a full grant of benefits. AB v. Brown, 6 Vet. App. 35 (1993). Therefore, this issue is no longer in appellate status. The Board further notes that the Veteran filed an informal claim for sleep apnea in December 2014, followed by a formal claim in January 2016. The RO denied the claim in an August 2015 rating decision. The Veteran then filed a Notice of Disagreement (NOD) in September 2015; and a Statement of the Case (SOC) was issued in December 2017. In August 2017, VA received the Veteran's VA Form 9. Relevant to the Veteran's lumbosacral disability claim, the Veteran's increased rating claim was received in August 2020. In an October 2020 rating decision, the RO increased the 20 percent rating to 40 percent, effective August 5, 2020. As this is not a full grant of the benefit sought on appeal, the claim remains before the Board. The Board also notes that in November 2020 and March 2021, the Veteran attempted to elect the modernized review system. 38 C.F.R. § 19.2 (d). The SOCs relevant to the Veteran's claims, however, were issued in August 2017 and December 2017, prior to February 19, 2019, the effective date of the Veterans Appeals Improvement and Modernization Act of 2017. Therefore, the issues will not be adjudicated under the modernized review system. 1. Entitlement to service connection for sleep apnea is remanded. 2. Entitlement to a rating in excess of 20 percent prior to August 5, 2020 for a lumbosacral strain and degenerative arthritis (previously rated as compression fracture of the thoracic vertebrae (T4)) and in excess of 40 percent thereafter is remanded. 3. Entitlement to a total disability rating based upon individual employability (TDIU) is remanded. In August 2021, a Social Security Administration (SSA) Profile and Benefit Data form was associated with the Veteran's claims file that appears to show that he currently receives Social Security disability benefits. The record does not show that the AOJ has attempted to obtain these records. As it is unclear whether these records are related to the claims on appeal, the AOJ should request the Veteran's SSA records upon remand. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(2). Relevant to the Veteran's service connection claim for sleep apnea, a February 2021 VA computerized problem list shows that the Veteran had been diagnosed with obstructive sleep apnea and was issued a CPAP machine. However, to date, the Veteran has not been afforded a VA examination to determine the nature and etiology of this disorder. Thus, on remand, an examination should be provided. The Board also notes that the Veteran has reported that his back condition is "so bad" that he is unable to work at this point and that, on some days, he is unable to get out of the bed due to the pain. See October 2020 VA 21-4138. Additionally, during an October 2020 Back DBQ, an examiner noted that the Veteran's back disability impacts his ability to work and stated that he is unable to walk, sit, stand for prolonged periods of time and is unable to bend. As such, a request for a TDIU was reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (a request for a TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part and parcel of a claim for an initial rating or increased rating for a disability). Therefore, the issue of entitlement to a TDIU has been added to the present appeal. Regarding the claim for a TDIU, the Board notes that the Veteran has not yet completed a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability and has not otherwise provided a detailed history of his employment and educational background. As such, the Board finds that a remand is warranted in order to solicit a completed VA Form 21-8940 from the Veteran detailing his work history, along with any other evidence relevant to the issue of entitlement to a TDIU. The matters are REMANDED for the following action: 1. Contact the Social Security Administration and obtain a copy of that agency's decision concerning the Veteran's claim for disability benefits, including any medical records used to make the decision. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified, and this should be documented for the record. 2. Provide the Veteran with a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) and ask him to complete and return this form. 3. Give the Veteran an opportunity to identify any outstanding pertinent treatment records, VA or private, that have not already been associated with the claims file that are relevant to the issue of entitlement to a TDIU. The AOJ should then attempt to obtain those records if the Veteran provides the appropriate authorization. 4. Then, schedule the Veteran for a VA examination to address the etiology of any current sleep disorder. The claims file must be made available to the examiner. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and the Veteran's own assertions. A clear explanation based on specific facts for the case, as well as relevant medical principles is needed. The Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. (a) The examiner must identify all current sleep disorders. (b) Then, for each diagnosis, the examiner must opine as to whether it is at least as likely as not (50 percent probability or greater) that the sleep disorder(s) manifested in service or is/are otherwise causally or etiologically related to the Veteran's military service. 5. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Hanson 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.