Citation Nr: 22010147 Decision Date: 02/22/22 Archive Date: 02/22/22 DOCKET NO. 17-38 266 DATE: February 22, 2022 REMANDED Entitlement to an increased rating in excess of 70 percent for post-traumatic stress disorder (PTSD) is remanded. Entitlement to an increased rating in excess of 30 percent for migraine headaches is remanded. Entitlement to an effective date prior to May 1, 2014 for a total disability rating based on individual unemployability (TDIU) is remanded. Entitlement to an effective date prior to May 1, 2014 for Dependents' Educational Assistance is remanded. Entitlement to an effective date prior to May 1, 2014 for special monthly compensation (based on housebound) is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. REASONS FOR REMAND The Veteran had active military service from October 1991 to April 1992 and from May 1998 to September 2005. These matters come before the Board of Veterans' Appeals (Board) from January 2015 and August 2017 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to an initial rating in excess of 70 percent for PTSD and in excess of 30 percent for migraine headaches is remanded. The Veteran has contended that both of these conditions have increased in severity. See e.g. July 2020 Third Party Correspondence. Given that the Veteran has not had an examination pursuant to his PTSD in several years (it appears that the most recent was in 2014), and as it does not seem he has been afforded one in regard to his migraines, the Board cannot make a fully-informed decision until the Veteran is given the opportunity to attend updated examinations on remand. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Lastly, any outstanding VA treatment records should be obtained and associated with the claims file. 2. Entitlement to an effective date prior to May 1, 2014 for TDIU is remanded. The Veteran also contends that his TDIU should be extended to include the period prior to May 1, 2014. Therefore, the Board cannot make a fully-informed decision until a VA opinion is obtained regarding the combined effect of the Veteran's then-service-connected disabilities on his ability to maintain gainful employment for the period prior to May 1, 2014. 3. Entitlement to an effective date prior to May 1, 2014 for Dependents' Educational Assistance and to an effective date prior to May 1, 2014 for special monthly compensation is remanded. As mentioned above, the Veteran's TDIU claim is being remanded herein. The resolution of the issue of entitlement to an earlier effective date for eligibility to Dependents' Educational Assistance is dependent upon adjudication of the TDIU claim on remand. Basic eligibility for Dependents' Educational Assistance exists if a veteran has a permanent, total service-connected disability. 38 U.S.C. §§ 3500, 3501. The issue of entitlement to an earlier effective date for special monthly compensation also depends on the outcome of other claims that are being remanded as it was afforded "under 38 U.S.C. § 1114, subsection (s) and 38 C.F.R. § 3.350 (i) on account of post-traumatic stress disorder (PTSD) rated 100 percent and additional service-connected disabilities of left shoulder degenerative joint disease, status post corocoplasty limited motion, tarsal tunnel syndrome with plantar fasciitis of the left foot, tarsal tunnel syndrome with plantar fasciitis of the right foot, tinnitus, migraine headaches, independently ratable at 60 percent or more from 05/01/2014." Therefore, the Board finds that these claims are inextricably intertwined and must also be remanded. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180 (1991). If there is a change in effective dates or ratings on remand, the Veteran may meet the eligibility requirements for either or both of these issues prior to May 1, 2014. 4. Entitlement to service connection for obstructive sleep apnea is remanded. The VA examiner who authored a nexus opinion in May of 2017 opined that "[t]he claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service connected condition" and stated that, "sleep apnea is cause[d] by central or obstructive problems. Obstruction of the upper airways causes difficulty with respirations. This leads to snoring and episodic apnea. Central complications occur with strokes. PTSD is not a current cause of sleep apnea." This opinion is inadequate because it did not address the aggravation prong of secondary service connection. See El-Amin v. Shinseki, 26 Vet. App. 136, 141 (2013). While a remand is necessary on that basis alone, it is also noteworthy that this opinion also lacks a thorough explanation and it should be ensured that the opinion obtained on remand has a full rationale for all opinions provided. The matters are REMANDED for the following actions: 1. Associate any outstanding relevant VA treatment records with the claims file. 2. Obtain an addendum opinion from an appropriate clinician. The entire claims file, including a complete copy of this remand, should be made available to and be reviewed by the clinician, and it should be confirmed that such records were available for review. If necessary to respond to any inquiry below, the Veteran should be scheduled for an interview, either via telephone or in-person, whichever is more convenient, to obtain such information. Following a review of the evidence of record, to include the Veteran's lay statements, the clinician should answer the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea condition is (1) proximately due to OR is (2) aggravated by the Veteran's service-connected PTSD. In so opining, the examiner is asked to provide a full and complete rationale. This opinion must consider the broader evidentiary picture, including the medical evidence and lay evidence, and the examiner is additionally asked to reconcile to the extent possible any conflicting evidence or opinions of record. 3. Following the completion of step one, schedule the Veteran for respective VA examinations before the appropriate examiners to determine the current severity of the Veteran's (1) PTSD and (2) migraines. All indicated tests and studies should be undertaken. The entire claims file, including a complete copy of this remand, should be made available to and be reviewed by each clinician, and it should be confirmed that such records were available for review. Each examiner is also asked to identify any functional limitations/impairment related to the respective condition. 4. Following the completion of all of the above, obtain an addendum retrospective opinion from an appropriate clinician for the period prior to May 1, 2014. The entire claims file, including a complete copy of this remand, should be made available to and be reviewed by the clinician, and it should be confirmed that such records were available for review. If necessary to respond to any inquiry below in regard to the prior state/severity of the Veteran's service-connected conditions, the Veteran should be scheduled for an interview, either via telephone or in-person, whichever is more convenient, to obtain such information. Following a review of the evidence of record, to include the Veteran's lay statements, the clinician should address the combined effect of the Veteran's service-connected disabilities on his ability to engage in any type of full-time employment for the period prior to May 1, 2014. The clinician should elicit and set forth the pertinent facts regarding the Veteran's medical history, education and employment history, day-to-day functioning, and industrial capacity. He or she should address the Veteran's ability to function in an occupational environment during that period. The clinician is advised that being unemployed during the period on appeal is not equivalent to being unemployable for VA purposes. In responding to these inquiries, any side effects the Veteran experienced from medications for the service-connected disabilities should be considered. If the evidence demonstrates that the Veteran experienced varying levels of impairment at different points during the appeal period, the clinician should so state and provide the basis for such conclusion. The clinician must provide a comprehensive report, including complete rationales for all conclusions reached. If the clinician is unable to provide any of the requested information without resorting to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion. 5. After completing all of the above, and conducting any additional development deemed necessary in light of the expanded record, readjudicate the claims on appeal, including the inextricably intertwined issues of the effective date of special monthly compensation based on housebound criteria and the effective date for eligibility to Dependents' Educational Assistance. If the benefits sought remain denied, issue the Veteran and his representative a supplemental statement of the case (SSOC) and provide a reasonable opportunity to respond before returning this matter to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Smith, 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.