Citation Nr: 21023153 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-25 625 DATE: April 20, 2021 ORDER Entitlement to service connection for sleep apnea, secondary to service-connected major depressive disorder, on a causation basis, is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran’s sleep apnea is caused by his service-connected major depressive disorder. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for sleep apnea, as secondary to service-connected major depressive disorder, on a causation basis, are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1986 to February 1990. These matters initially came before the Board of Veterans’ Appeals (Board) on appeal from September 2014 and April 2015 rating decisions. In November 2018, the Board expanded the appeal to include the inferred issue of entitlement to a TDIU due to service-connected disabilities, as part and parcel of the appeal for higher initial ratings for bilateral hearing loss and tinnitus. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board remanded the TDIU issue, as well as the Veteran’s claim of service connection for sleep apnea, for further development. As a final preliminary matter, the Board points out that the Veteran had also perfected an appeal with regard to the issue of entitlement to service connection for psychiatric disability, and the Board remanded this issue in November 2018 for further development. A Decision Review Officer (DRO) awarded service connection for major depressive disorder by way of a September 2020 decision, and thereby resolved the appeal as to this issue. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is also warranted for disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310. Entitlement to service connection for sleep apnea The Board finds, for the following reasons, that the Veteran has current sleep apnea and that the evidence is at least evenly balanced as to whether this disability is caused by his service-connected major depressive disorder. The report of a June 2020 VA sleep apnea examination indicates that the Veteran has been diagnosed as having obstructive sleep apnea. Therefore, current sleep apnea has been demonstrated. As for whether the Veteran’s sleep apnea is caused by his service-connected major depressive disorder, there are conflicting medical opinions. The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the Veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). The Board may favor one medical opinion over another, provided an adequate statement of reasons or bases is provided. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). In October 2016, the Veteran’s representative submitted an October 2016 Sleep Apnea Disability Benefits Questionnaire (DBQ) completed by H. Skaggs, M.D. and reported that the physician had reviewed the Veteran’s claims file. Dr. Skaggs reported in the DBQ that he had spoken with the Veteran and he opined that the Veteran’s depressive disorder “more likely than not aided in the development of” his obstructive sleep apnea. Dr. Skaggs reasoned that research has shown that psychiatric disorders are commonly associated with obstructive sleep apnea. A recent study found that subjects with depression, compared with non-depressed controls, have a higher prevalence of sleep apnea diagnosis. This study found that with continuous positive airway pressure (CPAP) treatment, both obstructive sleep apnea and psychiatric symptoms decreased. This provided further evidence of the co-morbidity of these conditions. The nurse practitioner who conducted the June 2020 VA sleep apnea examination opined that the Veteran’s sleep apnea was not likely (“less likely than not”/“less than 50 percent probability”) proximately due to or the result of his service-connected major depressive disorder. The examiner reasoned, in pertinent part, that sleep apnea occurs when the upper airway becomes blocked repeatedly during sleep, reducing or stopping airflow. This results in excessive daytime fatigue and sleepiness, as well as a decrease in concentration. While there is a lot of emerging data and research between psychiatric disorders and sleep apnea, there is no direct causation of them to sleep apnea. Common causes and risk factors for developing sleep apnea are excess weight, neck circumference, a narrowed airway, being male, being older, family history, use of alcohol, sedatives, or tranquilizers, smoking, and nasal congestion. As noted in a January 2020 primary care note, the Veteran had severe obesity and had smoked 1 pack per day for the previous 30 years. These were the most likely causes of his sleep apnea. The October 2016 and June 2020 opinions are based upon examination of the Veteran, a review of medical literature, a review of the Veteran’s treatment records, and/or consideration of his reported history, and they are accompanied by specific rationales that are consistent with the evidence of record. Therefore, these opinions are entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). In light of the above medical opinions, the Board finds that the evidence is at least evenly balanced as to whether the Veteran’s sleep apnea is caused by his service-connected major depressive disorder. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, service connection for sleep apnea, as secondary to service-connected major depressive disorder, on a causation basis, is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to a TDIU due to service-connected disabilities is remanded. The Veteran's claim for entitlement to a TDIU is inextricably intertwined with the agency of original jurisdiction’s (AOJ’s) implementation of the Board’s award of service connection for sleep apnea. Thus, adjudication of the TDIU claim must be deferred pending the AOJ’s implementation. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Moreover, as the record currently stands, the percentage ratings for the Veteran’s service-connected disabilities do not meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16 (a). VA policy is to grant a TDIU in all cases where service-connected disabilities preclude gainful employment, regardless of the percentage evaluations, but the Board is prohibited from assigning a TDIU on this basis in the first instance without ensuring that the claim is referred to VA’s Director of Compensation (Director) for consideration of an extraschedular rating under 38 C.F.R. § 4.16 (b). Bowling v. Principi, 15 Vet. App. 1 (2001); 38 C.F.R. § 4.16 (b). The initial extraschedular referral decision under § 4.16(b) should address whether there is “sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities.” Ray v. Wilkie, 31 Vet. App. 58, 66 (2019). Given the low standard for referral set forth in Ray, the Board finds that the evidence reflects that the Veteran has met this standard. Therefore, if after the AOJ implements the Board’s award of service connection for sleep apnea, the percentage ratings for the Veteran’s service-connected disabilities still do not meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16 (a), the AOJ should refer the TDIU issue on appeal to the Director for consideration of entitlement to a TDIU under the provisions of 38 C.F.R. § 4.16 (b). Lastly, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the VA Northern Indiana Health Care System (dated to July 2020) and the Tennessee Valley Healthcare System (dated to June 2017). Any VA treatment records are within VA’s constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them. The matter is REMANDED for the following actions: 1. Implement the Board’s award of service connection for sleep apnea, to include the assignment of an initial disability rating. 2. Undertake all appropriate efforts to obtain the Veteran’s outstanding VA treatment records from the VA Northern Indiana Health Care System for the period since July 2020; the Tennessee Valley Healthcare System for the period since June 2017; and all such relevant records from any other sufficiently identified VA facility. Make as many requests as are necessary to obtain the records. If the records are deemed to be unavailable, the claims file must be annotated as such and the Veteran must be notified. 3. If, after the AOJ implements the Board’s award of service connection for sleep apnea, the percentage ratings for the Veteran’s service-connected disabilities do not meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16 (a) for any period(s) since April 22, 2014, refer the case to VA’s Director of Compensation for consideration of entitlement to a TDIU under the provisions of 38 C.F.R. § 4.16 (b) during any such period(s). The Director (or his designee) should issue a memorandum addressing whether a TDIU is warranted under 38 C.F.R. § 4.16 (b) at any pertinent point from April 22, 2014. The memorandum should clearly provide a summary of the facts and law that were relied upon in making the decision and should include an explanation of the reasons and bases for the decision. Brian J. Elwood Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Gates 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.