Citation Nr: 21014232 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 19-08 860A DATE: March 11, 2021 ORDER The Veteran’s motion to vacate the September 1, 2020 decision of the Board of Veterans’ Appeals, to the extent that it denied entitlement to a total disability individual unemployability (TDIU) and entitlement to service connection for sleep apnea, is granted. An effective date of October 28, 2013, but no earlier. for the grant of entitlement to a TDIU is granted. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. The Board failed to take jurisdiction over an issue that was ripe for adjudication in the September 1, 2020 decision, namely entitlement to a TDIU for a limited period of time (TDIU had been granted), and did not address an explicitly raised secondary theory of entitlement for the claim of entitlement to service connection for sleep apnea. 2. The Veteran has been incapable of obtaining and maintaining substantially gainful employment due to his service-connected disabilities effective October 28, 2013. CONCLUSIONS OF LAW 1. The criteria to vacate the September 1, 2020 Board decision as to the issues of entitlement to a TDIU and entitlement to service connection for sleep apnea, have been met. 38 U.S.C. § 7104 (a) (2012); 38 C.F.R. § 20.904. 2. The criteria for entitlement to a TDIU, effective October 28, 2013, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1973 to December 1975. The Vacatur In September 2020, the Board issued a decision which denied the Veteran’s claim for entitlement to service connection for sleep apnea but did not address the issue of a TDIU because the Veteran had been granted TDIU. In November 2020, the Veteran filed a motion to vacate the Board’s September 2020 decision as to a TDIU and entitlement to service connection for sleep apnea. As to the issue of a TDIU, the Veteran asserted that the Board’s decision should be vacated because the United States Court of Appeals for Veterans Claims (Court) has held that a request for a TDIU is not a separate claim for benefits, but is rather a part of the adjudication for increased compensation. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran requested that the September 2020 Board decision be vacated to address the raised issue of his entitlement to a TDIU for a limited period of time. As to the issue of entitlement to service connection for sleep apnea, the Veteran is alleging that the Board failed to consider a secondary theory of entitlement, with obesity as an intermediary step between the Veteran’s service-connected acquired psychiatric condition The Veteran made no allegations of Board error with respect to the increased rating issue and remaining service connection issues that were decided in the September 2020 Board decision. The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board’s own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.904. The Board wishes to avoid further delay in this case. Here in the September 2020 decision, the Board failed to take jurisdiction over the issue of entitlement to TDIU that was properly before it as part of the Veteran’s increased rating claims (a staged rating). Moreover, the Board finds that the Board failed to address a secondary service connection theory of disability raised by the Veteran in a December 2019 brief which raised the issue of for sleep apnea as secondary to his obesity as secondary to the Veteran’s acquired psychiatric disability service connection claim that was pending at the time of the September 2020 Board decision. This vacatur is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100 (b). Rather, in the present decision below, the Board will reconsider the Veteran’s claims for entitlement to a TDIU and entitlement to service connection for sleep apnea, as secondary to a service-connected acquired psychiatric disorder. Entitlement to a TDIU The Board notes that the Veteran is currently in receipt of a TDIU. An October 14, 2020 rating decision granted the Veteran’s claim for entitlement to a TDIU and assigned an effective date of December 27, 2019, the date the Veteran’s filed his standalone claim for a TDIU. Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation.  Consideration may be given to the veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19.  In reaching such a determination, the central inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  The fact that a veteran is unemployed or has difficulty obtaining employment is not enough to warrant a TDIU.  See Van Hoose v. Brown, 4 Vet. App. 361.  The law provides that a total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall 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.  See 38 C.F.R. § 4.16 (a).  Here, the Veteran is currently service connected for the following: • Depression, rated as 70 percent disabling from November 17, 2016 • Peptic duodenal ulcer disease, rated as 10 percent disabling effective December 1, 1975, noncompensable effective December 1, 1987, 10 percent effective July 31, 2009 and 60 percent disabling effective October 28, 2013. The Veteran’s combined disability rating was 60 percent effective October 28, 2013, and 90 percent effective November 17, 2016. As such, the Veteran does meet the schedular requirement for TDIU under 38 C.F.R. § 4.16(a) since October 28, 2013 on account of his service-connected duodenal cancer being rated at 60 percent disabling effective October 28, 2013. The Veteran is currently in receipt of a TDIU effective December 27, 2019, the date he filed a separate claim for unemployability. See December 2019 VA Form 21-8940. The Veteran’s representative argues that an earlier effective date is warranted for a TDIU, as part and parcel of the Veteran’s pending increased rating claim relating to his peptic duodenal ulcer. The Veteran last worked as a mail carrier in approximately 2005. He held that job for approximately 7 years and has indicated that he left the position due to his disability. He has completed one year of college with no additional training. Records show that the Veteran has been found disabled by the Social Security Administration since June 1, 2005. The Veteran’s spouse submitted a statement noting that the Veteran suffers from ulcer pain severe enough to prevent him from being able to concentrate and help with daily activities. The Veteran also must use the bathroom frequently, with the spouse noting that the Veteran has difficulty shopping with her as he spends most of the time in the store’s bathroom. The spouse noted that she takes care of all household chores and sometimes even requires outside help for outdoor chores. When looking at the overall disability picture of the Veteran, and affording the Veteran the benefit of the doubt, the Board finds that the evidence of record supports that the Veteran is precluded from engaging in substantially gainful employment as a result of his service-connected disabilities. The Board notes that a claim for a TDIU is a type of increased rating claim, and the effective date rules for increased rating claims are therefore for application. Dalton v. Nicholson, 21 Vet. App. 23, 3234 (2007) (a TDIU claim based on a disability that has already been service-connected is an increased rating claim for the purpose of the application of 38 U.S.C. § 5110 (b)(2), now 38 U.S.C. § 5110 (b)(3)). Furthermore, the effective date for an increased rating for disability compensation will be the date entitlement arose, the earliest date as of which it is factually ascertainable that an increase in disability occurred if a claim is received within one year from such date, or the date of receipt of the claim, whichever is later. 38 U.S.C. § 5110 (b)(3); 38 C.F.R. § 3.400 (o). The Veteran’s claim for an increased rating for service-connected peptic duodenal cancer was received by VA on October 28, 2013 and the Veteran has been continuously prosecuting his claim since that time. The Board finds it is unlikely that the Veteran would have been able to obtain or maintain substantially gainful employment since October 28, 2013. After carefully considering the Veteran’s disability picture, the Board assigns October 28, 2013, as the effective date for a TDIU. REASONS FOR REMAND Entitlement to service connection for sleep apnea, to include as secondary to service-connected acquired psychiatric disorder Although the Board regrets the delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim. Here, the evidence reflects that obesity may have developed as a manifestation of the Veteran’s now service-connected acquired psychiatric disability and also may have been an “intermediate step” between the Veteran’s service-connected acquired psychiatric disability and his claimed sleep apnea. Given the above, the Board finds that a VA examination and medical opinions are needed to determine the relationship, if any, between the Veteran’s service-connected psychiatric disorder, his obesity, and his claimed secondary sleep apnea. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matter is REMANDED for the following action: 1. Obtain a medical opinion to determine whether the Veteran’s obstructive sleep apnea is related to service or a service-connected disability. All pertinent evidence of record must be made available to and reviewed by the medical professional providing the opinion. 2. Following examination of the Veteran and review of all relevant evidence of record, the physician should render opinions, consistent with sound medical judgment, addressing the following: (a.) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s service-connected depression caused him to become obese? If so, (b.) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s obesity was a substantial factor in his development of sleep apnea? If so, (c.) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s sleep apnea may not have occurred but for the obesity? In rendering the requested opinions, the physician must specifically consider and discuss all medical and other objective evidence, as well as all lay assertions. The physician is advised that the Veteran is competent to report matters within her own personal knowledge, to include symptoms and events experienced, and that lay assertions in this regard must be considered in formulating the requested opinions. If lay assertions in any regard are discounted, the physician should clearly so state, and explain why. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. (Continued on the next page)   3. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the remaining claim on appeal considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication) and legal authority. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V. Woehlke 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.