Citation Nr: 21073434 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 03-37 068 DATE: December 8, 2021 ORDER Entitlement to total disability due to individual unemployability from November 26, 2019, is granted. Entitlement to service connection for obstructive sleep apnea is denied. REMANDED Entitlement to an evaluation in excess of 30 percent prior to November 1, 2018, and 50 percent thereafter, for an acquired psychiatric disorder is remanded. Entitlement to special monthly compensation for aid and attendance for service dog is remanded. Entitlement to total disability due to individual unemployability prior to November 26, 2019, is remanded. FINDINGS OF FACT 1. The Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation from November 26, 2019. 2. The Veteran's obstructive sleep apnea was not secondary to service-connected acquired psychiatric disability and was not otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1110, 1131, 1155, 5107; 38 C.F.R. §§ 3.102, 4.15, 4.16. 2. The criteria for service connection for obstructive sleep apnea due to service or an acquired psychiatric disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1965 to July 1967. The Veteran died in November 2020. The Veteran's spouse is the substitute party and appellant. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The appellant's claims were previously remanded by the Board in an August 2017 decision. The Board finds that the RO has substantially complied with the August 2017 Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Although the Board sincerely regrets the additional delay, a remand is again necessary to ensure that due process is followed and that there is a complete record upon which to decide the appellant's claim so that she is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Entitlement to total disability due to individual unemployability from November 26, 2019 The Veteran is seeking a total disability rating based on individual unemployability (TDIU). The Board finds that the Veteran's service-connected disabilities prevent him from securing or following a substantially gainful occupation, and the Board finds that a TDIU is warranted in this case from November 26, 2019. For the period prior to November 26, 2019, the Board is remanding the issue as it is inextricably intertwined with the issue of an increased evaluation for an acquired psychiatric disability. A TDIU may be assigned when the disabled veteran is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities; provided they meet specified percentage ratings. 38 C.F.R. § 4.16(a). For purposes of meeting the percentage criteria of § 4.16(a) disabilities resulting from a common etiology are considered a single disability. 38 C.F.R. § 4.16(a)(2). To qualify for a schedular TDIU under § 4.16(a) the Veteran must have one service-connected disability rated at 60 percent or more, or, if there are two or more such disabilities, one must be ratable at 40 percent or more, and combine with sufficient additional disability to bring the combined total to 70 percent or more. Further, for the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war The combined ratings table at 38 C.F.R. § 4.25 is used to determine the combined disability rating. 38 C.F.R. § 4.25. There are two regulatory subsections that allow for a TDIU. The first, called a "schedular TDIU," provides that a TDIU may be assigned when a disabled Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities alone. 38 C.F.R. § 4.16(a). If there is only one service-connected disability, this disability must be ratable at 60 percent or more. Id. If there are two or more disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. Id. Either the Board or the agency of original jurisdiction (AOJ) can grant a schedular TDIU in the first instance. The second, called an "extraschedular TDIU," does not have the percentage requirement but cannot be granted by the Board or the AOJ in the first instance. 38 C.F.R. § 4.16(b). Rather, it must be submitted to VA's Director, Compensation Service to provide an opinion as to whether or not the Veteran's service-connected disabilities alone prevent the Veteran from securing or following a substantially gainful occupation. 38 C.F.R. § 4.16(b). Additionally, in a recent precedential decision issued by the United States Court of Appeals for Veterans Claims, they offered guidance in defining "unable to secure and follow a substantially gainful occupation." In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court found that 38 C.F.R. § 4.16 (b) has two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the following: the Veteran's history, education, skill, and training; whether the Veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the Veteran has the mental ability to perform the activities required by the occupation at issue. The Veteran was found to have service-connected coronary artery disease, rated at 60 percent from November 26, 2019; an acquired psychiatric disorder, rated at 50 percent from November 1, 2018, and diabetes mellitus, type 2, rated at 10 percent from November 26, 2019. The Veteran's combined evaluation was 80 percent from November 26, 2019. Thus, the Veteran met the schedular requirements for TDIU from November 26, 2019. 38 C.F.R. § § 4.16(a). The remaining inquiry is whether he was unable to secure or follow substantially gainful occupation due solely to service-connected disabilities. In his May 2013 application for increased compensation based on unemployability, the Veteran indicated he was unable to work due to service-connected PTSD. The Veteran indicated that he has not been able to work as a correctional officer since 1992. The Veteran also noted that the last time he worked full-time was November 1992. Considering the Ray factors noted above, the Board finds that the Veteran is unable to secure or follow a substantially gainful occupation due solely to service-connected disabilities. See Ray, 31 Vet. App. 58 (2019) The Veteran reported that he last worked in November 1992 as a correctional officer. The Veteran indicated that he completed 4 years of high school, two years of college, and training as a correctional officer in 1981 and 1992. The Veteran had extensive mental limitations and symptoms including depressed mood, anxiety, chronic sleep impairment, disturbances in motivation and mood, difficulty in establishing relationships, difficulty in adapting to stressful circumstances, and grossly inappropriate behavior from his acquired psychiatric disability. Thus, the Board finds that the Veteran has been unable to engage in substantial employment activity since November 26, 2019 and grants total disability due to individual unemployability. 2. Entitlement to service connection for obstructive sleep apnea The Veteran contended that his obstructive sleep apnea was secondary to his PTSD or other acquired psychiatric disability. Because the Veteran has not raised, and the record does not reasonably raise, entitlement to direct service connection, the Board's adjudication will consider only entitlement to secondary service connection. Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The question for the Board is whether the Veteran had a current disability that is proximately due to or the result of or was aggravated beyond its natural progress by service-connected disability. The Board concludes that, while the Veteran had a current disability of obstructive sleep apnea, the preponderance of the evidence is against finding that the Veteran's obstructive sleep apnea is proximately due to or the result of or aggravated beyond its natural progression by service-connected disability to include an acquired psychiatric disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). The June 2018 VA examiner opined that the Veteran's obstructive sleep apnea is instead more likely due to obesity. The rationale was obesity is the strongest risk factor for obstructive sleep apnea followed by increasing age and male gender. Furthermore, the examiner indicated that there is no medical evidence to support the contention that PTSD causes obstructive sleep apnea. The examiner also indicated there is no medical basis to support the contention of PTSD aggravating OSA symptoms but did note that treating OSA has been shown in some studies to help PTSD symptoms. The Veteran believed his OSA is proximately due to or the result of or aggravated beyond its natural progression by a service-connected disability. The Veteran in this case was not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body, pathology, and the interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he had the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA medical examiner's opinion. REASONS FOR REMAND 1. Entitlement to an evaluation in excess of 30 percent prior to November 1, 2018, and 50 percent thereafter, for an acquired psychiatric disorder is remanded. The Veteran was rated at 100 percent for a non-service-connected schizoaffective disorder. The Veteran was also deemed incompetent from September 17, 2004, until January 20, 2016, based on his personality disorder. In an October 2017 rating decision, the RO granted the Veteran entitlement to service connection for an acquired psychiatric disorder to include PTSD and aggravated bipolar disorder effective October 22, 1991, rated at 30 percent from October 22, 1991. In an April 2020 rating decision, the RO increased the Veteran's rated to 50 percent effective November 1, 2018. The Board is unable to make a fully formed decision on the issue of entitlement to an evaluation in excess of 30 percent prior to November 1, 2018, and 50 percent thereafter, for an acquired psychiatric disorder, to include PTSD and aggravated bipolar disorder, because it is unclear what symptoms are attributable to which diagnosis during which time period. 2. Entitlement to special monthly compensation for aid and attendance for service dog is remanded. The Veteran contended that he was entitled to SMC for a service dog due to his service-connected PTSD. Because a decision on the remanded issue[s] of entitlement to an increased evaluation for an acquired psychiatric disorder could significantly impact a decision on the issue[s] of entitlement to SMC, the issues are inextricably intertwined. A remand of the claims for entitlement to SMC is required. 3. Entitlement to total disability due to individual unemployability prior to November 26, 2019, is remanded. The Veteran contended that he was unable to secure and maintain substantial gainful employment due to his service-connected and non-service-connected disabilities since 1992. Accordingly, because a decision on the remanded issue of an increased evaluation for an acquired psychiatric disability could significantly impact a decision on the issue of entitlement to TDIU, the issues are inextricably intertwined. A remand of the claim for entitlement to TDIU prior to November 26, 2019, is required. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding the nature and progression of the Veteran's service-connected acquired psychiatric disorders and his non-service-connected personality disorders, to include schizoaffective disorder. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria during the entire period at issue. The examiner must attempt to determine from the record information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his service-connected psychiatric disorder alone in contrast to his non-service-connected personality disorder. If evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). 2. After the above has been completed, complete any necessary development required to substantiate the claim for TDIU prior to November 2019. In so doing, ask the appellant to complete and return VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) and VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits) if necessary, to adjudicate the claim. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issues of entitlement to SMC and entitlement to TDIU prior to November 2019. If the benefit sought is not granted to the appellant's satisfaction, send the appellant and her representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. Taylor, 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.