Citation Nr: 21041866 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 09-34 651 DATE: July 10, 2021 REMANDED Entitlement to service connection for a sleep disorder, to include sleep apnea, is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU) for the period prior to October 1, 2012, is remanded. Entitlement to a TDIU for the period from October 1, 2012, to June 19, 2015, is remanded. Entitlement to a TDIU for the period from June 19, 2015, to September 12, 2019, is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from August 1970 to February 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision by or on behalf of the Atlanta, Georgia, Regional Office (RO) of the Department of Veterans Affairs (VA). In August 2013 and May 2016, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. The transcripts of those hearings are of record. The appeal was most recently remanded for additional development in March 2018 and September 2020. The Board notes that the TDIU issue has continued on appeal since the February 2007 rating decision and that during this time there have been pertinent rating determinations pertinent to the issue of entitlement to a TDIU. It is significant to note that a July 2012 rating decision reduced the Veteran's evaluation for coronary artery disease (CAD) resulting in a combined service-connected disability rating of 60 percent for the period from October 1, 2012, to June 19, 2015, and that a combined service-connected 100 percent rating is assigned effective from September 12, 2019. The Board further notes that permanence of disability is not a requirement for a TDIU under 38 C.F.R. § 4.16(a). See VA Gen. Coun. Prec. 5-2005 (Nov. 25, 2005). As VA records show the Veteran does not currently meet the schedular rating requirements for a TDIU under 38 C.F.R. § 4.16(a) during the period from October 1, 2012, to June 19, 2015, the issues for appellate review as to this matter have been revised for administrative clarity. As previously noted in the September 2020 remand, an April 2020 statement of the case addressed the issues of entitlement to a rating in excess of 30 percent for CAD, a rating in excess of 20 percent for diabetes mellitus type II (DM II), an initial rating in excess of 10 percent for right lower extremity diabetic peripheral neuropathy of the sciatic nerve, an initial rating in excess of 10 percent for left lower extremity diabetic peripheral neuropathy of the sciatic nerve as well as entitlement to service connection for residuals of concussion, chronic fatigue, degenerative joint disease (DJD), hearing loss, sarcoidosis, and for multiple miscarriages and still a birth, to include as due to herbicide exposure. In his June 2020 VA Form 9 the Veteran requested a videoconference hearing as to these matters and they will be separately addressed upon completion of the requested action. The Board also notes that in June 2019 the Veteran submitted a decision review request with a hearing before a Veterans Law Judge for the issue of entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD). As such, the matter will be separately addressed under the applicable provisions of the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). Although this appeal has been previously remanded, the Board finds that additional development is required for adequate determinations. Subsequent to the September 2020 remand the Veteran submitted pertinent evidence in support of his claims and waived Agency of Original Jurisdiction (AOJ). That evidence includes a February 2021 private medical opinion that determined that the Veteran's OSA was as likely as not secondary to his psychiatric disorder. Reference was made to attached studies/medical literature titled Psychiatric Disorders and Sleep Apnea, SLEEP, Vol. 28, No. 11, 2005, and an American Academy of Sleep Medicine article dated May 19, 2015. Neither study was attached to the report. A request needs to be made. The February 2021 private medical opinion was also not available for review at the time of a January 2020 VA examination. It is also unclear as to whether the January 2020 VA examiner considered the effects of medications taken for the Veteran's service-connected psychiatric disorder. A clarifying VA opinion is therefore needed. The claim for TDIU is inextricably intertwined with the claim for service connection for chronic sleep disorder (sleep apnea). This is especially so for the period between October 1, 2012, and June 19, 2015, which is a period when the Veteran does not meet the schedular requirements for a TDIU. The outcome of the Veteran's service connection claim could impact whether the Veteran's service-connected disabilities meet the schedular TDIU threshold set forth in 38 C.F.R. § 4.16 (a). The matters are REMANDED for the following action: 1. Request that the Veteran provide copies of the medical literature considered in the private medical opinion received in March 2021 (Psychiatric Disorders and Sleep Apnea, SLEEP, Vol. 28, No. 11, 2005, and an American Academy of Sleep Medicine article dated May 19, 2015). 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's obstructive sleep apnea is at least as likely as not (a) proximately due to a service-connected disability, to include medications associated with treatment for such disorders, or (b) underwent any incremental increase in disability, regardless of its permanence, due to a service-connected disability. The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any "incremental increase in disability" need not be permanent. Provide a rationale to support the opinion(s). MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Douglas 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.