Citation Nr: 21023425 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 17-29 290 DATE: April 20, 2021 REMANDED Entitlement to an increased rating in excess of 30 percent for posttraumatic stress disorder (PTSD) effective July 9, 2012, is remanded. Service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected PTSD, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected PTSD is remanded. REASONS FOR REMAND The Veteran served on active duty from January 2000 to August 2005. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision issued by the Department of Veterans’ Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. By way of background, the RO denied service connection for OSA and continued a noncompensable rating for adjustment disorder in the September 2013 rating decision. The Veteran timely appealed. During the pendency of the appeal, the RO recharacterized the Veteran’s acquired psychiatric disorder to PTSD (previously rated as adjustment disorder) and assigned a 30 percent disability rating effective July 9, 2012 in a May 2017 rating decision. The claims were certified before the Board where the Veteran requested a hearing. The hearing was held in February 2021 and a transcript has been associated with the claims file and reviewed. 1. Entitlement to an increased rating in excess of 30 percent for PTSD effective July 9, 2012, is remanded. The Veteran contends he is experiencing worsened PTSD symptoms entitling him to a higher disability rating. The Board finds the evidence of record is insufficient to resolve the Veteran’s claim. During the hearing, the Veteran testified that he has been experiencing worsened PTSD symptoms, to include daily panic attacks, trouble sleeping, and increased suicidal ideation. The Veteran was last afforded a VA examination to determine the severity of his PTSD symptoms in April 2017. Thus, remand is necessary to afford the Veteran a contemporaneous VA examination to determine the current severity of his symptoms. See Snuffer v. Gober, 10 Vet. App. 400 (1997). 2. Service connection for OSA, to include as secondary to service-connected PTSD, is remanded. The Veteran contends his OSA was caused by or incurred during service, or in the alternative, was caused or aggravated by his service-connected PTSD. The Board finds the evidence of record is insufficient to resolve the Veteran’s claim. The Veteran was afforded a VA examination in May 2017 where the examiner diagnosed the Veteran with OSA, finding that it was not likely related to in-service symptoms of fatigue. The focus of the examination was the Veteran’s in-service symptoms. The examiner did not provide an opinion as to the likelihood that the Veteran’s OSA was caused or aggravated by his service-connected PTSD. The Veteran testified that his PTSD symptoms include sleep disturbances that aggravate his OSA. See February 2021 hearing transcript, p. 3. Treatment records also reflect OSA with an unknown etiology including potentially “RBD versus PTSD with sleep apnea versus other.” See August 2019 VA treatment records. Further, the May 2017 VA examiner reasoned, in-part, that the Veteran’s depression likely contributes to his continued feelings of fatigue despite CPAP use for OSA. Thus, the Board finds a VA examination is warranted to address whether the Veteran’s OSA was caused or aggravated by his service-connected PTSD. 3. Entitlement to TDIU is remanded. The Veteran contends he is unable to obtain and maintain employment due to the severity of his service-connected PTSD symptoms. The Board finds the issue of TDIU was reasonably raised from the evidentiary record. See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009). The Veteran testified that he has not worked, it is hard to keep a job, and he struggles to get along with coworkers and deal with the stress of work. See February 2021 hearing transcript, p. 5. Treatment records reference the Veteran being unemployed and his PTSD symptoms increased to the point of impacting his “relationships and employment.” See April and October 2019 VA treatment records. Based upon the evidence of record, however, the Veteran’s employment history and status are unclear, and development of this claim needs to be completed including notice of the evidence required to substantiate a TDIU claim and solicitation of an employment and payment history to determine TDIU eligibility. Additionally, the Board finds the Veteran’s inferred TDIU claim is intertwined with the increased rating claim for PTSD that is being remanded for further development herein because the Veteran may meet the schedular criteria based on an increased rating. Accordingly, the TDIU issue is remanded as inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Based on the above, remand is required as this issue is inextricably intertwined with the Veteran’s increased rating claim for PTSD and requires further development. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination before an appropriate examiner to determine the current severity of the Veteran’s PTSD. The entire claims file and this remand should be made available to the examiner. The examiner shall provide a full description of the Veteran’s disability and discuss all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner shall identify any functional, social, and occupational effects or impairments due to his acquired psychiatric disorder. The examiner is directed to consider the Veteran’s lay statements of symptom worsening. 2. Schedule the Veteran for a VA examination before an appropriate examiner. The examiner shall be provided the entire claims file including this remand for review prior to the examination. The examiner shall issue an opinion, including rationale, addressing the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s service-connected PTSD caused or aggravated his OSA. In so opining, the examiner is specifically directed to address the Veteran’s statements of experiencing sleep disturbances from his PTSD that worsen his OSA; the Veteran’s 2014 treatment records referencing “rbd versus PTSD with sleep apnea versus other” as etiologies of the Veteran’s sleep disturbances; and the May 2017 VA examiner’s reasoning that the Veteran’s depression likely contributes to his feeling of fatigue despite CPAP use for OSA. The VA examiner is cautioned that the term “aggravated,” as used in 38 C.F.R. § 3.310(b), does not require that there be “permanent worsening” of the nonservice-connected disability. Instead, secondary service connection is warranted for “any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence.” See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). The examiner must provide a complete rationale for any opinion expressed, based on the examiner’s clinical and medical expertise; established medical principles; and references to the evidence of record, as appropriate. If any opinion cannot be expressed without resort to speculation, ensure that the examiner so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. Send the Veteran a notice letter, pursuant to 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), which advises him of the information needed to substantiate a claim for TDIU. In addition, ask the Veteran to complete a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) to obtain relevant employment information. (Continued on the next page)   4. After the above development, and any other development deemed necessary, readjudicate the claims. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.C. Allen, 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.