Citation Nr: 21023500 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 17-40 306 DATE: April 20, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent from August 31, 2011 to January 15, 2015, and in excess of 10 percent from April 1, 2015 for service-connected posttraumatic stress disorder (PTSD) is remanded. Service connection for sleep disturbances, claimed secondary to service-connected PTSD, is remanded. Service connection for a disability manifested by memory loss, claimed secondary to service-connected PTSD, is remanded. Service connection for depression is remanded. Service connection for bipolar disorder is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from October 2007 to March 2008 and September 2008 to September 2009. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2020, the Veteran testified at a video-hearing before the undersigned. A transcript is of record. By way of background, the Board notes that these claims have a complicated procedural history. After an initial grant of service connection for PTSD in a July 2013 rating decision, the RO issued a rating decision in January 2014 denying entitlement to service connection for bipolar disorder and finding clear and unmistakable error in the July 2013 decision and, instead, awarding a 100 percent rating for PTSD. Thereafter, in a subsequent March 2014 rating decision, the RO continued the 10 percent rating for PTSD finding the majority of the Veteran’s symptomatology was associated with his non-service-connected bipolar disorder. The Veteran filed a notice of disagreement (NOD) in April 2014 for the PTSD rating, the denial of service connection for bipolar disorder, depression, memory loss, and sleep disturbances. The July 2017 SOC in this case, only included the issues pertaining to his PTSD rating, sleep disturbances, and TDIU. Bipolar disorder was again adjudicated and denied in an April 2017 rating decision and the Veteran, again, filed an NOD as to this issue in April 2017. No Statement of the Case (SOC) has ever been provided as to this issue or the issues pertaining to depression or memory loss. As such, those issues have been added herein for the purposes of remanding the matter back to the RO to continue the Legacy appeal. See Manlincon v. West, 12 Vet. App. 238 (1999). As an aside, the Board notes the Veteran, in March 2020, filed a separate claim for service connection for obstructive sleep apnea (OSA), which is separately being developed and is not ripe for jurisdictional review. The Board also notes that from January 15, 2015 to April 1, 2015, the Veteran was assigned a 100 percent rating for his service-connected PTSD due to hospitalization. See March 2015 Rating Decision. The 100 percent rating was in effect from the date of his hospitalization to his release. As the Veteran is already in receipt of the highest schedular rating during this period it is not on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). 1. Entitlement to an initial rating in excess of 10 percent from August 31, 2011 to January 15, 2015 and in excess of 10 percent from April 1, 2015 for service-connected PTSD is remanded. The Veteran was last examined for purposes of assessing the severity of his PTSD in January 2017. During his August 2020 hearing the Veteran testified as to a worsening of symptomology since his last examination. Under the circumstances, a new examination is warranted. See, e.g., Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The claim is further complicated because many of his manifestations have been attributed to his non-service-connected bipolar disorder, which is still pending appellate review. The Board finds the issues intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 2. Service connection for sleep disturbances, claimed secondary to service-connected PTSD, is remanded. The Veteran contends he has sleep disturbances that are secondary to his service-connected PTSD, but a separate disability. During his hearing before the Board, he testified he believed he had a diagnosable condition, such as sleep apnea or insomnia. While the Veteran has been afforded several mental health VA examinations that note sleep disturbances as a manifestation of his PTSD, he has never been afforded a VA examination specifically to determine if he has an independently diagnosable sleep impairment. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159; see also McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The Veteran’s October 2016 VA treatment records reflect a diagnosis of insomnia; the Veteran has asserted that this condition is due to his service-connected PTSD; and has provided lay evidence linking the two; however, there is insufficient evidence of record to decide the claim. Consequently, remand for an examination and etiology opinion is warranted. See id.; Locklear v. Nicholson, 20 Vet. App. 410 (2006). 2. Service connection for bipolar disorder is remanded. 3. Service connection for depression is remanded. 4. Service connection for memory loss is remanded. As outlined in the introduction above, the Veteran filed NODs with rating decisions that denied his claims for service connection for bipolar disorder, depression, and memory loss during the pendency of this appeal. The resulting July 2017 SOC, however, did not include or otherwise address these issues, despite the NOD. While there is evidence that the Veteran’s bipolar claim was again adjudicated and denied in an April 2017 rating decision, the Veteran once again filed an NOD in April 2017 with no subsequent action from the RO. As such, the Board finds all three issues must be remanded for the issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238 (1999). 5. Entitlement to a TDIU is remanded. Because the development sought in connection with the Veteran’s claim for a higher rating for his PTSD may impact his TDIU claim, the Board finds the issue to be intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); Holland v. Brown, 6 Vet. App. 443 (1994); Henderson v. West, 12 Vet. App. 11 (1998). As such, the TDIU claim will be remanded as well. The matters are REMANDED for the following action: 1. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. Arrange to have the Veteran scheduled for a VA psychiatric examination for purposes of assessing the current severity of his PTSD. 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. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should distinguish between the various symptomatology attributable to his service-connected PTSD versus his other disabilities, such as bipolar disorder. If it is not possible to separate the effects of the service-connected condition from a nonservice-connected condition, the examiner should say so and explain why not. Mittleider v. West, 11 Vet. App. 181 (1998). 2. Ask an examiner of appropriate expertise to review the Veteran’s file. The necessity of an in-person examination is left to the discretion of the examiner. Based on a review of the record and conducting an examination (if deemed necessary) of the Veteran, the examiner should respond to the following: a) The examiner should state whether the Veteran has a sleep disability that is separate and distinct from the symptoms of his service-connected PTSD. If so, the examiner should state the diagnosis/diagnoses. b) If the Veteran has a separate and distinct sleep disability, for each diagnosis rendered the examiner should state whether it is at least as likely as not (50 percent or greater probability) that such sleep disability was caused or aggravated by the Veteran’s service-connected PTSD. • 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). c) If the examiner finds that the Veteran’s sleep disability was aggravated by his service-connected PTSD, then he/she should specify the baseline level of disability of the disability prior to aggravation and the permanent, measurable level of increased impairment due to service-connected PTSD. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. The examiner must provide the rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. Send the Veteran and his representative a statement of the case that addresses the issues of entitlement to service connection for bipolar disorder, depression, and memory loss. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issues should be returned to the Board for further appellate consideration. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues remaining on appeal should be readjudicated based on the entirety of the evidence, to include the intertwined TDIU issue. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Gandhi, 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.