Citation Nr: 21032319 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 13-35 367 DATE: May 26, 2021 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to a service-connected disability, is remanded. Entitlement to an effective date prior to December 12, 2018 for the 70 percent disability rating for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU), for the appeal period prior to May 26, 2020, is remanded. REASONS FOR REMAND The Veteran had active duty military service from January 1983 to January 1986. This matter was previously before the Board in January 2020 when the claim of service connection for sleep apnea was denied because the Board found that the Veteran's PTSD did not cause or aggravate his sleep apnea. The Veteran appealed this denial to the Court of Appeals for Veterans Claims (Court) which, in December 2020, issued a Joint Motion for Remand (JMR) vacating the decision and remanding the issue to the Board for further development. The Board further notes that in a June 2020 rating decision, the Veteran was awarded TDIU effective May 26, 2020. The Veteran claims that he became too disabled to work as a result of his service-connected psychiatric disability as of October 26, 2012. The Board finds that the Veteran's appeal of the effective date assigned for his PTSD rating is in essence a claim for an increased rating. As such, the TDIU issue, for the appeal period prior to May 26, 2020, is part of this appeal. Rice v. Shinseki, 22 Vet. App. 447, 455 (2009). Entitlement to service connection for sleep apnea, to include as secondary to a service-connected disability The Veteran was provided VA examinations in May 2019 and October 2019 which found that the Veteran's sleep apnea was due to his obesity. The Court noted that the VA General Counsel has ruled that, while obesity itself is not a disability for which service connection is appropriate, it can serve as an intermediate step to link a condition to service. The Court determined that VA had a duty to determine if the Veteran's obesity was caused or aggravated by his PTSD, which would therefore support a grant of service connection on a secondary basis. The Court directed that any additional development also include analysis of any link between side effects of medication for PTSD and depression and obesity and, therefore, sleep apnea. Entitlement to an effective date prior to December 12, 2018 for the 70 percent disability rating for PTSD The Veteran is service connected for PTSD which was rated as 50 percent disabling since June 2015. In December 2018, the Veteran filed a claim for an increased disability rating. When the January 2019 rating decision granted a 70 percent disability rating, the effective date assigned was December 12, 2018, the date that the Veteran's claim for increased rating was received. In the Notice of Disagreement submitted in April 2019, the Veteran asserted that an earlier effective date should have been assigned for the 70 percent rating because he had been participating in mental health treatment since August 2015. He noted that prior to June 2015, he had been assigned a 70 percent disability rating, but the disability rating was reduced, he asserted, based on his nonparticipation in treatment. Generally, the effective date for the grant of service connection based on a claim for increase is either the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Otherwise it will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5100(b)(1); 38 C.F.R. § 3.400(b). The effective date of a claim for an increased evaluation "will be the date of receipt of the claim or the date entitlement arose." 38 C.F.R. § 3.400(o)(1). The effective date of an award of increased compensation, however, can be the earliest date as of which it was ascertainable that an increase in disability has occurred, if the application is received within one year from such date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). See Hazan v. Gober, 10 Vet. App. 511 (1997). Consequently, the award of an increased rating should normally be effective either on the date of receipt of the claim or on some date in the preceding year if it was ascertainable that the disorder had increased in severity during that time. Application of 38 C.F.R. § 3.400 means that the earliest effective date that can be assigned for the Veteran's 70 percent rating is one year prior to the date of claim for increase or December 12, 2017. To support this higher rating, the evidence needs to show that the Veteran's PTSD was characterized by occupational and social impairment with deficiencies in most areas including work, school, family relations, judgment, thinking, or mood, home, and school. 38 C.F.R. § 4.130. In this instance, the record clearly shows that the Veteran has been receiving mental health treatment through the Vet Canter. However, during the appeals process, no attempt was made to request a copy of those records to determine if they showed an increased level of disability in the year prior to the increased ratings claim. This is a clear oversight that must be remedied on remand. Once the records are obtained, the claim for an earlier effective date should be revaluated. TDIU Prior to May 26, 2020 The issue of entitlement to a TDIU prior to May 26, 2020 is inextricably intertwined with the issues remanded herein. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). The matters are REMANDED for the following action: 1. Obtain the Vet Center records for the Veteran's PTSD treatment from at least 2016. 2. Based on the information in the Vet Center records, reevaluate whether the Veteran's PTSD was manifested to a level of severity consistent with a 70 percent disability rating prior to December 2018. 3. Provide the Veteran with an appropriate VA examination to address whether it is at least as likely as not (probability 50 percent or greater) that his obesity was either caused or aggravated by his PTSD, to include as a result of side effects of medication prescribed for PTSD or depression linked to PTSD. **The examiner should explicitly address the Veteran's history of weight issues and any correlation to mental health symptoms. **The examiner should specifically indicate whether PTSD caused, contributed to cause, or aggravated his weight gain or obesity. In addressing this issue, the examiner should consider the statements of the Veteran regarding his history and all medical records discussing the Veteran's weight gain and ability to address his weight. **Please note that for secondary service connection, "aggravation" need not be permanent in nature. See Ward v. Wilkie, 31 Vet. App. 233, 241-42 (2019). The examiner should provide a statement of the reasons or rationale for the opinions provided, to include citations to any relevant evidence in the record and to any relevant medical research or literature which informs the opinion. 4. Then, readjudicate the claims on appeal. Romina A. Casadei Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Cheryl E. Handy 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.