Citation Nr: 21026684 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 11-28 250 DATE: May 3, 2021 ORDER Entitlement to service connection for a sleep condition, to include obstructive sleep apnea, is granted. REMANDED Entitlement to an initial compensable rating for dry skin, prior to January 13, 2017, is remanded. REFERRED In December 2018, the Board of Veterans' Appeals (Board) granted entitlement to service connection for a cervical condition. In April 2019, the agency of original jurisdiction (AOJ) granted an initial 10 percent rating for the cervical spine condition. The Veteran requested a decision review by supplemental claim in July 2019 and August 2019. The AOJ issued a decision in September 2019, denying a rating in excess of 10 percent. The Veteran requested a decision review by higher-level review in August 2020. In September 2020, the AOJ erroneously notified the Veteran that his increased rating claim for the cervical spine was currently under appeal in the traditional legacy process. The Board notes there is no such appeal in the legacy system. To the contrary, the April 2019 decision granting service connection was awarded after implementation of the AMA. To date, the Veteran's request for a higher-level review has not been adjudicated by the AOJ under the AMA system. The Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b). FINDING OF FACT The Veteran's diagnosed obstructive sleep apnea began during active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for a sleep condition have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1979 to August 1979 and from February 2003 to April 2004, to include service in Southwest Asia. The Veteran testified before the undersigned Veterans Law Judge in a January 2017 hearing before the Board. A transcript of the proceeding has been associated with the claims file. In March 2017, the Board remanded the sleep condition claim and denied the increased rating dry skin claim. The Board remanded the sleep condition claim in November 2017. The Veteran appealed the March 2017 decision to the U.S. Court of Appeals for Veterans Claims (Court). In a May 2018 Joint Motion for Partial Remand, the Court vacated the decision denying an increased rating for dry skin, and remanded the issue to the Board for further development. The Board once again remanded the sleep disorder and dry skin claims in December 2018. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical, or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran was afforded VA nexus opinions in May 2017, November 2017, November 2019, and December 2020. The May 2017, November 2017, and December 2020 examiners provided negative nexus opinions, finding the Veteran's sleep apnea did not incur during and was not caused by active service, to include service in Southwest Asia. The November 2019 VA examiner provided a positive nexus opinion, finding the Veteran's sleep apnea more likely than not began during active duty service. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event; or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C. § 5107(b). The November 2019 VA examiner provided a positive nexus opinion. The May 2017, November 2017, and December 2020 VA examiners provided negative nexus opinions. The examiners reviewed the Veteran's claims file and provided rationales for the conclusions reached; therefore, the Board finds that they are entitled to equal weight of probative value. As such, the Board concludes the evidence regarding a nexus between sleep apnea and the Veteran's active duty service are in relative equipoise. The benefit of the doubt is afforded to the Veteran; and accordingly, the Board finds that service connection for a sleep condition is established, and this claim is granted in full. REASONS FOR REMAND In November 2011, the AOJ granted an initial noncompensable rating for dry skin, effective February 14, 2007. In May 2018, the Court vacated the Board's March 2017 denial of an initial compensable rating for dry skin. In December 2018, the Board remanded the matter for further development. In January 2021, the AOJ granted an increased rating of 60 percent for dry skin, effective January 13, 2017. The AOJ indicated that this was deemed a "TOTAL GRANT" of benefits sought on appeal because the 60 percent represented the maximum schedular rating for said disability. The Board notes the Veteran appealed the initial rating assigned for dry skin. Accordingly, the appeal period extends to back to February 14, 2007, and the Veteran is presumed to seek the maximum benefits for the entirety of the appellate period. See AB v. Brown, 6 Vet. App. 35(1993). A Supplemental Statement of the Case (SSOC) has not been furnished for the issue of entitlement to a compensable rating prior to January 13, 2017. As such, remand is necessary for the AOJ to furnish an SSOC on this issue and provide the Veteran and his representative an opportunity to respond prior to appellate review. 38 C.F.R. § 19.38. The matters are REMANDED for the following action: Readjudicate the Veteran's claim for entitlement to an initial compensable rating for dry skin, prior to January 13, 2017 in light of all the evidence of record. If any benefit on appeal remains denied, an SSOC must be provided to the Veteran and his representative. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. N. Quarles, 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.