Citation Nr: 21072344 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 17-52 791 DATE: December 2, 2021 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected musculoskeletal disabilities and/or migraines, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 2008 to March 2013. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in August 2014 and January 2016 by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2020, the Board, as relevant, denied service connection for sleep apnea and a TDIU. The Veteran appealed such denial to the United States Court of Appeals for Veterans Claims (Court). In June 2021, the Secretary and the Veteran (the parties) entered into a Joint Motion for Partial Remand (JMPR) wherein they moved the Court to vacate and remand the June 2020 decision. In an Order issued the same month, the Court granted the JMPR and the case now returns for further appellate review. 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected musculoskeletal disabilities and/or migraines. In the June 2020 decision, the Board found that the preponderance of the evidence was against a finding that the Veteran's sleep apnea was secondary to service-connected musculoskeletal disability and/or migraines, or was otherwise related to an in-service injury or disease, based primarily on VA medical opinions rendered in September 2017. However, in the JMPR, the parties found that the Board failed to adequately address whether the September 2017 VA examiner's opinion was adequate in relation to the aggravation prong of secondary service connection. In this regard, the parties observed that the September 2017 VA examiner indicated that the Veteran's sleep apnea was stable and "reveals no abnormalities other than what would normally be expected from this condition;" and then found that no aggravation could be demonstrated that would have arisen from the service-connected musculoskeletal conditions or migraines. However, the parties determined that it was unclear from the examiner's rationale whether the sleep apnea was aggravated by the service-connected disabilities. Thus, the parties found that a remand was necessary in order to address the adequacy of the September 2017 VA examiner's opinion with respect to aggravation. Therefore, the Board finds that a remand is necessary in order to obtain an addendum opinion that adequately addresses the relationship between the Veteran's sleep apnea and his service-connected musculoskeletal disabilities and/or migraines. 2. Entitlement to a TDIU. In the June 2020 decision, the Board found that the Veteran's service-connected disabilities did not prevent him from obtaining or maintaining substantially gainful employment, based on the Veteran's education (including a master's degree), work history (real estate agent since before he entered service in 2008 and since 2014), and the nature of his service-connected disabilities as reported by clinical examiners. However, in the JMPR, the parties found that the Board erred in failing to address relevant evidence. In this regard, the parties observed that in his August 2015 TDIU application, the Veteran reported that he worked as a part-time realtor in a self-employed capacity, his highest monthly gross earning was $583.00, and the most he earned in one year was $7,000. Here, the parties determined that the Board failed to discuss whether such qualified as marginal employment or employment in a protected environment. Thus, the parties found that a remand was necessary in order for the Board to comply with the Court's holding in Ray v. Wilkie, 31 Vet. App. 58, 71 (2019), and determine whether the Veteran was marginally employed or worked in a protected work environment. In this regard, the Board finds that a remand is necessary as additional development is warranted to fully address contentions related to marginal employment. Here, the Veteran should be provided an opportunity to supply relevant information in support of his TDIU claim, including salary information, sales goals, and any reasonable accommodations (pay stubs, W2 forms, tax returns, letters from the real estate company he represented) from his employment as a real estate agent. Accordingly, the matters are REMANDED for the following actions: 1. The Agency of Original Jurisdiction should provide notice to the Veteran and request he provide additional evidence, including salary information, sales goals, and any reasonable accommodations (pay stubs, W2 forms, tax returns, letters from the real estate company he represented), documenting marginal employment as a real estate agent due to his service-connected disabilities. This should include evidence showing that the Veteran's employment was in a protected environment, such as a family basis or sheltered workshop. 2. Return the record to the VA examiner who offered the September 2017 opinion regarding the etiology of the Veteran's sleep apnea. The record, to include a complete copy of this Remand, must be made available to and reviewed by the examiner. If the September 2017 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. Following a review of the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's sleep apnea was aggravated by his service-connected musculoskeletal disabilities (lumbar spine, cervical spine, right hip, right knee, left knee, right ankle, left ankle) and/or migraines. Please note that a "permanent worsening" of a nonservice-connected disability is not required to establish secondary service connection on the basis of aggravation. For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. In offering such opinion, the examiner should consider the Veteran's spouse's report that the pain from his service-connected musculoskeletal disabilities caused him to have trouble sleeping. A rationale for any opinion offered should be provided. K. STANTON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dawn A. Leung, 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.