Citation Nr: 21042048 Decision Date: 07/11/21 Archive Date: 07/11/21 DOCKET NO. 15-22 195 DATE: July 11, 2021 REMANDED Entitlement to service connection for right ear hearing loss is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to a disability rating in excess of 50 percent for an acquired psychiatric disorder, to include depression and anxiety, prior to July 10, 2019, and in excess of 70 percent from July 11, 2019, to March 15, 2021, is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU), prior to March 16, 2021, is remanded. Preliminary Matters The Veteran had honorable active duty service with the United States Navy from January 1982 to January 1986. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated May 2015 and July 2015 of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran's electronic claims file. In June 2019 and December 2020, the Board remanded the Veteran's claims of entitlement to service connection for right ear hearing loss and sleep apnea, an increased rating for his psychiatric disorder, and a TDIU. While the case was in remand status, in a May 2020 rating decision, the RO increased the Veteran's evaluation for the acquired psychiatric disorder to 70 percent disabling, effective July 10, 2019. Then, in an April 2021 rating decision, the RO again increased the Veteran's evaluation for the acquired psychiatric disorder to 100 percent, effective March 16, 2021. As this grant does not constitute a full grant of the benefit sought on appeal, the increased rating claim is still on appeal. AB v. Brown, 6 Vet. App. 35 (1993). Thus, the issue has been restated accordingly on the title page. The issues have returned to the Board for further appellate consideration. The Board finds that the issue of entitlement to a TDIU since March 16, 2021, is moot in light of the 100 percent rating for the Veteran's acquired psychiatric disorder effective March 16, 2021. Entitlement to a TDIU is a benefit that is only awarded when the schedular rating is less than total for the disability or disabilities on which the TDIU would be based. See 38 C.F.R. § 4.16(a); Vettese v. Brown, 7 Vet. App. 31 (1994) (holding that a "claim for TDIU presupposes that the rating for the condition is less than 100 percent"). However, the issue of entitlement to a TDIU prior to March 16, 2021, remains on appeal as part and parcel of the increased rating claim, as the record reasonably raises the issue of unemployability due to the Veteran's service-connected acquired psychiatric disorder. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). The issues have returned to the Board for further appellate consideration. REASONS FOR REMAND Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Entitlement to service connection for right ear hearing loss is remanded. The Veteran has a right, as a matter of law, to compliance with remand instructions, and the Board has a duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the June 2019 remand, the Board directed the Agency of Original Jurisdiction (AOJ) to obtain an addendum opinion to determine the nature and etiology of the claimed right ear hearing loss. The examiner was directed to state whether the Veteran currently suffered from hearing loss of the right ear, and if so, address whether it is directly related to service. Additionally, the examiner was directed to address whether the claimed right ear hearing loss was caused or aggravated beyond the normal progression of the disorder by his service-connected bilateral tinnitus and/or left ear hearing loss. Pursuant to the June 2019 Board remand instructions pertaining to the right ear hearing loss claim, a VA addendum opinion was obtained in October 2019. The examiner did not confirm whether the Veteran currently suffers from right ear hearing loss. Nevertheless, the examiner provided a negative nexus opinion addressing direct service connection. The examiner did not address whether the Veteran's claimed right ear hearing loss was caused by his service-connected bilateral tinnitus and/or left ear hearing loss. As the October 2019 VA examiner did not satisfy the June 2019 remand instructions, in December 2020, the Board remanded the issue for a new VA opinion to be obtained. Accordingly, a VA addendum opinion as to the right ear hearing loss claim was obtained in March 2021. The VA examiner again failed to confirm whether the Veteran currently suffers from right ear hearing loss. Thus, the Board finds the March 2021 opinion to be inadequate, as the examiner did not satisfy the December 2020 remand instructions. Accordingly, to ensure compliance with the directives of the June 2019 and December 2020 remands, a new VA opinion should be obtained. See Stegall, 11 Vet. App. at 271. 2. Entitlement to service connection for obstructive sleep apnea is remanded. The Veteran asserts that his sleep apnea is due to or aggravated by his service-connected psychiatric disorder, to include as due to his impaired sleep and his medications. In the June 2019 remand, the Board directed the AOJ to obtain an addendum opinion addressing whether the Veteran's sleep apnea is proximately due to or aggravated beyond the natural progression by a service-connected disability, to include his service-connected psychiatric disorder, medications required for his service-connected disabilities, or his sleep impairment related to his psychiatric disorder. In June 2020, a VA sleep apnea opinion was obtained. The examiner opined it is less likely than not that the Veteran's obstructive sleep apnea is proximately due to or aggravated beyond its natural progression by a service-connected disability. As rationale, the examiner stated that psychiatric disorders are usually secondary to obstructive sleep apnea, and, in the Veteran's case, she did not believe that his psychiatric disorders were causing exacerbation of his sleep apnea. The examiner further stated that, while obstructive sleep apnea may play a role in the development of anxiety and depression in some patients, she opined that the reverse correlation of depression and anxiety leading to aggravation of obstructive sleep apnea is unlikely. As no rationale was provided for this opinion and the examiner failed to provide an adequate analysis of the aggravation prong and also failed to address whether the Veteran's sleep apnea was caused by medications required for his service-connected disabilities, in December 2020, the Board directed the AOJ to obtain a new VA medical opinion. Accordingly, a VA addendum opinion as to the sleep apnea claim was obtained in March 2021. The VA examiner noted a diagnosis of obstructive sleep apnea, diagnosed in June 2009. The VA examiner opined that the Veteran's sleep apnea is less likely than not caused or aggravated beyond the natural progression by his service-connected psychiatric disorder, to include as due to his impaired sleep and his medications. In support of this opinion, the VA examiner reasoned that, while there is support in medical literature noting a correlation between depression and obstructive sleep apnea, the literature does not show or prove causation of obstructive sleep apnea by depression. The VA examiner further reasoned that the Veteran is obese and noted that obesity greatly increases the risk of sleep apnea and is the number one cause. The examiner concluded that the Veteran's obesity was a major contributor for his obstructive sleep apnea. The Board notes that the VA examiner's rationale only provides reasoning for causation. The examiner did not provide rationale for the opinion stating that the Veteran's sleep apnea was not aggravated by his service-connected psychiatric disorder. The Board adds that in Allen v. Brown, 7 Vet. App. 439 (1995), the Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.310(b) to mean that an additional disability may be entitled to secondary service connection if it is caused by or aggravated by a service-connected disability. Thus, when determining secondary service connection, both causation and aggravation must be addressed. See El-Amin v. Shinseki, 26 Vet. App. 136 (2012). Furthermore, the VA examiner did not acknowledge whether the Veteran's service-connected psychiatric disorder may contribute to the Veteran's weight gain or obesity or whether obesity may be an intermediary step between the Veteran's service-connected psychiatric disorder and his obstructive sleep apnea. The Board notes obesity is not considered a disability for VA purposes. However, obesity can be considered "an intermediate step" for service connection if the evidence shows that a service-connected disability caused the veteran to become obese and the obesity caused by the service-connected disability was a substantial factor in causing the current disability, and that the current disability would not have occurred but for the obesity caused by the service-connected disability. VAOPGCPREC 1-2017. In Walsh v. Wilkie, the Court held that the Board needs to consider the obesity-intermediate step theorem. Thus, the Court held that proper interpretation of G.C. Precedent Opinion 1-2017 requires consideration of proximate causation: (1) whether the service-connected disability caused the veteran to become obese; (2) if so, whether the obesity as a result of the service-connected disability was a substantial factor in causing the current disability; and (3) whether the current disability would not have occurred but for obesity caused by the service-connected disability. If these questions are answered in the affirmative, then the current disability may be service connected on a secondary basis. Walsh v. Wilkie, 32 Vet. App. 300, 304 (2020). Accordingly, in light of the foregoing and to ensure compliance with the directives of the June 2019 and December 2020 remands, a new VA medical opinion should be obtained, which includes an adequate supporting rationale. See Stegall, 11 Vet. App. at 271. 3. Entitlement to a disability rating in excess of 50 percent for an acquired psychiatric disorder, to include depression and anxiety, prior to July 10, 2019, and in excess of 70 percent from July 11, 2019, to March 15, 2021, is remanded. The Veteran contends that he is entitled to an increased disability rating for his service-connected acquired psychiatric disorder. As previously discussed, while the case was in remand status, in a May 2020 rating decision, the RO increased the Veteran's evaluation for the acquired psychiatric disorder to 70 percent disabling, effective July 10, 2019. Then, in an April 2021 rating decision, the RO again increased the Veteran's evaluation for the acquired psychiatric disorder to 100 percent, effective March 16, 2021. On the same day, the RO issued a supplemental statement of the case (SSOC) in which it addressed the issue of entitlement to an evaluation in excess of 50 percent for the Veteran's service-connected psychiatric disorder prior to July 10, 2019. As the April 2021 rating decision increased the evaluation for the service-connected disability to 100 percent, effective March 16, 2021, the RO failed to address the issue of entitlement to an evaluation in excess of 70 percent from July 11, 2019, to March 15, 2021. As the RO failed to readjudicate the proper issues as to entitlement to an increased rating for service-connected psychiatric disorder, the Veteran has not been afforded due process. See C.F.R. § 19.31. Therefore, to ensure compliance with applicable regulations and to afford due process to the Veteran, this matter must be remanded for a SSOC. 4. Entitlement to a TDIU prior to March 16, 2021, is remanded. The Board further finds that the issue of the Veteran's entitlement to a TDIU prior to March 16, 2021, is inextricably intertwined with the claims remanded herein. Accordingly, the issue of entitlement to a TDIU must be deferred pending adjudication of the previously stated claims. See Henderson v. West, 12 Vet. App. 11, 20 (1998) (matters are "inextricably intertwined" where action on one matter could have a "significant impact" on the other). Finally, on remand, the AOJ should make appropriate efforts to ensure that all pertinent private treatment records and any updated VA records are associated with the claims file. The matters are REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 2. After completing the above development, return the claims file to the examiner who provided the March 2021 VA opinion for the claimed right ear hearing loss. The Veteran's claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. If the March 2021 examiner is not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinion. If the examiner determines that a VA examination is necessary, one should be scheduled. If an examination cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the AOJ should consider whether other virtual options, to include telehealth interviews or examinations are possible. If virtual alternatives are not feasible or possible, the AOJ should indicate as much, and medical opinions based on review of the Veteran's claims file should be obtained, in lieu of an in-person or virtual examination, addressing the etiology of the Veteran's claimed disability. The examiner must provide an opinion as to whether the Veteran currently suffers from hearing loss of the right ear, and if so, opine as to whether it is at least as likely as not related to military noise exposure or proximately due to or aggravated beyond its natural progression by a service-connected disability to include bilateral tinnitus or left ear hearing loss. The Veteran's lay assertions regarding the history and onset of his right ear symptomatology must be considered and discussed. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 3. Then, return the claims file to the examiner who provided the March 2021 VA opinion for the Veteran's obstructive sleep apnea. The Veteran's claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. If the March 2021 examiner is not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinion. If the examiner determines that a VA examination is necessary, one should be scheduled. If an examination cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the AOJ should consider whether other virtual options, to include telehealth interviews or examinations are possible. If virtual alternatives are not feasible or possible, the AOJ should indicate as much, and medical opinions based on review of the Veteran's claims file should be obtained, in lieu of an in-person or virtual examination, addressing the etiology of the Veteran's claimed disability. The examiner should address the following: (a) State whether the Veteran's service-connected psychiatric disorder, to include medications for treatment and sleep impairment related to his psychiatric disorder, caused the Veteran to become obese. (b) If the Veteran's service-connected psychiatric disorder caused the Veteran to become obese, address whether the obesity as a result of the service-connected condition was a substantial factor in causing the Veteran's obstructive sleep apnea. (c) State whether the obstructive sleep apnea would not have occurred but for the obesity caused by the service-connected psychiatric disorder, treatment for that disorder, or his sleep impairment related to his psychiatric disorder. (d) State whether it is at least as likely as not that the Veteran's obstructive sleep apnea is at least as likely as not caused or aggravated by the Veteran's service-connected psychiatric disorder, treatment for that disorder, or his sleep impairment related to his psychiatric disorder. The examiner is informed that aggravation here is defined as any increase in disability. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. (Continued on next page) 4. After completing all indicated development, the Veteran's claims, to include the issue of entitlement to a TDIU prior to March 16, 2021, should be readjudicated based on the entirety of the evidence. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. MacDonald, 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.