Citation Nr: 21011829 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 17-43 851 DATE: March 2, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to a total disability rating due to individual unemployability for the period prior to January 14, 2021, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1977 to October 1977, May 1989 to September 1989, and December 1989 to May 2007. He had additional periods of Active Duty for Training and Inactive duty training over the years. This appeal initially came to the Board of Veterans’ Appeals (Board) from an April 2015 rating decision. In July 2019, the Board denied the Veteran’s claim. The Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court). In May 2020, the Court vacated the Board decision and remanded the Veteran’s claim for action consistent with the directives of a Joint Motion for Remand (JMR). The May 2020 JMR indicated the Veteran did not appeal the decision concerning an increased rating for the lumbar and cervical spine and accordingly the appeal concerning those issues is dismissed. Entitlement to service connection for sleep apnea is remanded. The parties agree that vacatur and remand are warranted because the Board erred when it failed to ensure that the duty to assist was satisfied under 38 U.S.C. § 5103A and 38 C.F.R. § 3.159. The parties agree that the Board erred when it relied on an inadequate May 2017 Department of Veterans Affairs (VA) examination to deny The Veteran’s claim for service connection for sleep apnea. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (“An opinion is adequate where it . . . describes the disability, if any, in sufficient detail so that the Board’s “‘evaluation of the claimed disability will be a fully informed one.’”). The Veteran’s representative raised the following contentions in his January 2021 appellate brief reference specific problems he perceives in the 2017 VA examination and the Board’s decision that followed to be corrected based on the Court’s remand: 1. The May 2017 examiner noted that The Veteran was not diagnosed with sleep apnea in service and his service treatment records showed no complaints of sleep apnea but referenced sleep problems associated with tinnitus. However, while service treatment records indicate that The Veteran was unable to sleep, they did not identify the cause of the issue. Thus, the VA examination is inadequate, because it was based on an inaccurate factual premise, and the Board erred when it relied on it because the examination failed to address whether this documented evidence of sleep issues is related to The Veteran’s current sleep apnea. Stefl, 21 Vet. App. at 123; Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 2. The examiner cited to a supposed lack of any sleep complaints during service or in the service treatment records. But in April 1992, a service treatment record showed that the Veteran was unable to sleep. The service medical records also demonstrate that he had difficulty sleeping in December 1991. 3. Additionally, the Board failed to obtain an examination that addressed the Veteran’s statements about the onset of his sleep problems in service, which the Board implicitly found credible. Miller v. Wilkie, 32 Vet. App. 249, 260 (2020). The Court in Miller held that "when the record includes the Veteran’s lay reports, which the Board did not find to be not credible, we may ordinarily conclude that it made an implicit credibility determination." Id. And "where the examiner failed to address the Veteran’s lay evidence and the Board fails to find the Veteran not credible or not competent to offer that lay evidence, the proper remedy is for VA to obtain a new examination. 4. Here, the May 2017 examiner concluded that the Veteran’s sleep apnea was less likely than not related to service. She noted his difficulty sleeping due to tinnitus in 2007, but not his other reports of sleep difficulties. But as noted above, he was unable to sleep at one point in 1992 and had difficulty sleeping in 1991. The Veteran also claimed that at the time of his separation, his sleep apnea was not completely evaluated or addressed. See May 2016 Notice of Disagreement. The Veteran’s representative argues that this statement demonstrated that he was having sleep issues at separation that might have been due to undiagnosed sleep apnea, and an opinion needs to address it. See id. On remand, the Board must obtain a VA examination that considers the relevant medical evidence. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); see Tucker v. West, 11 Vet. App. 369, 374 (1998) (remand is warranted “where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate”). The JMR also found the Board erred in not adjudicating TDIU as the Veteran had claims for increased ratings on appeal and there was evidence suggesting he was unable to maintain gainful employment. The Board notes that during the pendency of the appeal TDIU was granted in a February 2021 rating decision and was effective January 14, 2021. Once entitlement to a TDIU is part of a claim for an increased rating, when the RO grants a TDIU which does not span the entire period on appeal, the issue of entitlement to a TDIU for an earlier period remains on appeal. Harper v. Wilkie, 30 Vet. App. 356 (2018). Accordingly, entitlement to TDIU for the period prior to January 14, 2021 remains on appeal. During this period, the Veteran had a combined disability rating of 60 percent. Thus, he does not meet the schedular requirements for TDIU pursuant to 38 C.F.R. § 4.16 (a). When a Veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16 (a), an extraschedular rating may never nevertheless be warranted where the veteran is unemployable due to service-connected disabilities. 38 C.F.R. § 4.16 (b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Should the Board discern a plausible basis for an extraschedular TDIU, it must refer the matter to the Director of Compensation Service for an initial decision before the Board may decide the issue. See Wages v. McDonald, 27 Vet. App. 233, 236 (2015). The matters are REMANDED for the following action: 1. Associate any outstanding VA treatment records with the electronic claims file. Contact the Veteran and request that he provide enough information, and if necessary, authorization to enable the AOJ to obtain any relevant outstanding non-VA treatment records. The AOJ should try to obtain any treatment records identified by the Veteran that are not currently associated with the claims file. 2. Send the claims file containing this remand order to an appropriate VA examiner and ask the examiner to review the record and prepare a medical opinion on the etiology of the claimed sleep apnea. If the VA examiner determines that further examination is necessary in order to render the requested medical opinions, the AOJ should schedule the Veteran for such an examination. For the diagnosis, the examiner should provide a medical opinion on whether it is at least as likely as not (50 percent probability or greater) that the diagnosis is related to an incident, injury, or event in active service. The examiner MUST discuss the Veteran’s service treatment records reference sleep problems in December 1991 and April 1992 and sleep problems associated with tinnitus in the 2017 VA exam. The examiner MUST address whether those sleep issues as well as the Veteran’s statement in his May 2016 Notice of Disagreement that at the time of his separation, his sleep apnea was not completely evaluated or addressed are related to the Veteran’s current sleep apnea. A thorough rationale should be provided for all opinions expressed. If the requested medical opinion cannot be given, the examiner should state the reason(s) why. 3. Refer the claim for a TDIU for the period prior to January 14, 2021, to the Director of Compensation Service for a determination as to whether the Veteran is entitled to a TDIU on an extraschedular basis in accordance with the provisions of 38 C.F.R. § 4.16 (b). A full statement as to the Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be provided. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Black, 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.