Citation Nr: 21029024 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 14-23 619 DATE: May 12, 2021 REMANDED A compensable disability evaluation for scleroderma, for the period from June 19, 2009 to July 28, 2010, is remanded. Service connection for sleep apnea is remanded. A total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1971 to March 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in June 2010 by a Department of Veterans Affairs (VA) Regional Office (RO). The Board acknowledges that the Veteran requested a Board hearing in connection with this appeal and failed to appear for the scheduled hearing. Thus, the hearing request is considered withdrawn. 38 C.F.R. § 20.704(d). In June 2009, the Veteran submitted a statement in which he specifically contended that his service-connected disabilities have rendered him unemployable and requested a TDIU. See June 2009 Correspondence. As entitlement to a TDIU has been raised as part and parcel of the increased rating claim on appeal, the Board has assumed jurisdiction of this issue. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In April 2018 and August 2020, the Board remanded the claims on appeal for additional development. The April 2018 remand included claims for service connection for a low back disorder and a seizure disorder, which were granted by the RO in March 2020 and are no longer on appeal. See Grantham v. Brown, 114 F.3d 1156, 1159 (1997). 1. Entitlement to a compensable disability evaluation for scleroderma, for the period from June 19, 2009 to July 28, 2010, is remanded. As background, in a December 1994 rating decision, the RO initially granted service connection for scleroderma and assigned a noncompensable evaluation. In June 2009, the Veteran filed an application requesting a compensable evaluation for scleroderma. As stated in the introduction, in a June 2010 decision the RO denied the claim. The Veteran preserved his appeal rights, and the matter is appropriately before the Board. Because the claim is not an initial claim, the Board considers evidence of symptomatology up to one year from the date the application was filed in June 2009. Hart v. Mansfield, 21 Vet. App. 505 (2007); 38 C.F.R. § 3.156 (b). During the pendency of the appeal, in an October 2020 rating decision, the RO increased the rating for scleroderma to 60 percent, effective July 29, 2010. Notably, the rating decision did not adjudicate the period from June 19, 2009 to July 28, 2010. Although the 60 percent rating represents the highest rating for scleroderma under the General Rating Formula for the Skin, which applies to Diagnostic Code 7821, under which the Veteran's scleroderma is rated, the Veteran's claim for an increased rating for scleroderma was not granted in full. The February 2021 Supplemental Statement of the Case (SSOC), which addressed sleep apnea, did not address the scleroderma increased rating claim, for the period from June 19, 2009 to July 28, 2010. The Veteran is presumed to seek the maximum available benefit for a disability. As such, the claim prior to July 29, 2010 is still on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Notably prior remand directives instructed the RO to readjudicate the claims on appeal and issue a SSOC. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The appropriate Board action is to remand the claim for readjudication and issuance of a SSOC for the period from June 19, 2009 to July 28, 2010. 2. Entitlement to service connection for sleep apnea is remanded. In connection with his claim, the Veteran was examined in September 2020. In a February 2021 addendum opinion, the examiner opined that it was less likely as not (i.e., a 50 percent or greater probability) that the Veteran's obstructive sleep apnea was related to active service because the Veteran did not have complaints of or treatment for sleep apnea in service, and because the Veteran was first diagnosed with obstructive sleep apnea in July 2019 (27 years after service). The examiner added that it was difficult to reconcile subjective complaints of fatigue and snoring (which is not documented in the in-service treatment records) with a diagnosis of obstructive sleep apnea in 2019, and that the most common causes of obstructive sleep apnea are excess weight and obesity. The Board finds the VA opinion inadequate to decide the claim. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that once VA has provided a VA examination or obtained a medical opinion, it is required to provide or obtain one that is adequate for the purpose sought). Here, the February 2021 VA examiner inaccurately characterized the evidence, as medical records refer to treatment for and diagnosis of sleep apnea earlier than the examiner indicated. See June 2002 Outpatient Provider Record ("Problem List - Other and unspecified Sleep Apnea"); March 2009 Private Treatment Record ("Active Problems: obstructive sleep apnea, unable to use CPAP as it caused seizure"). As such, the claim is remanded for an addendum opinion. 3. Entitlement to a TDIU is remanded. The Veteran's claim for TDIU is inextricably intertwined with the scleroderma increased rating claim; thus, it must be remanded concurrently. Harris v. Derwinski, 1 Vet. App. 180, 183 (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's obstructive sleep apnea is at least as likely as not related to military service. The examiner is asked to specifically address: (1) the June 2002 Outpatient Provider Record, documenting "Problem List - Other and unspecified Sleep Apnea" and; (2) the March 2009 Private Treatment Record, noting "Active Problems: obstructive sleep apnea, unable to use CPAP as it caused seizure." 2. Readjudicate the claims remaining on appeal, to include entitlement to service connection for obstructive sleep apnea, a compensable rating for scleroderma for the period from June 19, 2009 to July 28, 2010, and TDIU. If any benefit sought is not granted in full, furnish the Veteran and his representative a SSOC that takes into consideration all evidence of record and afford an appropriate period of time for response. Thereafter, the case should be returned to the Board, if in order. Amanda Baker Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Hennessy, 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.