Citation Nr: 22017952 Decision Date: 03/27/22 Archive Date: 03/27/22 DOCKET NO. 18-34 211 DATE: March 27, 2022 ORDER 1. New and material evidence sufficient to reopen the claim for service connection for obstructive sleep apnea has been received, and the application to reopen the claim is granted. REMANDED 2. The reopened claim for entitlement to service connection for obstructive sleep apnea is remanded. 3. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) and traumatic brain injury (TBI) is remanded. 4. Entitlement to an initial compensable rating for migraine headaches, including migraine variants associated with TBI, is remanded. 5. Entitlement to a total disability rating for compensation based on individual unemployability due to service connected disabilities (TDIU) on an extraschedular basis is remanded for referral to the Director of Compensation Service. FINDING OF FACT New evidence received since the October 2014 rating decision relates to an unestablished fact necessary to substantiate the Veteran's claim for service connection for obstructive sleep apnea. CONCLUSION OF LAW The October 2014 rating decision denying service connection for obstructive sleep apnea is final. New and material evidence has been received to reopen the claim for service connection for obstructive sleep apnea. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the US Army from May 2010 to July 2013. These matters are before the Board of Veterans' Appeals (Board) on appeal of rating decision from May 2017 and August 2017. The Veteran testified at a Board of Veterans' Appeals (Board) hearing before the undersigned Veterans Law Judge in November 2021. A transcript of the Board hearing is contained in the Veteran's claims file. 1. Whether new and material evidence sufficient to reopen the claim for service connection for obstructive sleep apnea has been received Prior unappealed decisions of the RO are final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. The Board does not have jurisdiction to consider a claim that has become final before it determines that new and material evidence has been presented, irrespective of what the regional office may have determined with respect to new and material evidence. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). If, however, new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. Manio v. Derwinski, 1 Vet. App. 145 (1991); 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to agency decisionmakers, while material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Only evidence presented since the last final denial on any basis (whether by the Board or RO, and whether upon the merits of the case or upon a previous adjudication that no new and material evidence had been presented) will be evaluated in the context of the entire record. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but also whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. In this instance, a February 2014 rating decision denied the Veteran entitlement to service connection for obstructive sleep apnea. The Veteran did not appeal, but filed a VA Form 21-526EZ which was interpreted as an application to reopen the Veteran's service connection claim in June 2014. An October 2014 rating decision continued the prior denial of service connection because no new and material evidence was received in relation to the Veteran's claim. The Veteran did not appeal the rating decision within one year, at which time, the decision became final. The Veteran submitted a supplemental claim for service connection for obstructive sleep apnea in June 2017. An August 2017 rating decision denied the Veteran's service-connection claim. The Board finds that the agency of original jurisdiction implicitly found that new and material evidence had been received by not addressing the issue of new and material evidence directly and addressing the Veteran's claim on the merits. Likewise, the Board finds that new and material evidence has been received in relation to the Veteran's claim. Specifically, the Veteran provided a medical opinion from James Dauphin, M.D. stating the belief that the Veteran's obstructive sleep apnea is secondary to his PTSD. This evidence was not of record at the time of the October 2014 rating decision, and relates to an unestablished fact necessary to substantiate the Veteran's claim. Thus, new and material evidence has been received and the Veteran's service- connection claim for obstructive sleep apnea is reopened. REASONS FOR REMAND 2. Entitlement to service connection for obstructive sleep apnea The Veteran participated in a VA examination for obstructive sleep apnea in August 2017. The examiner provided an opinion that the Veteran's obstructive sleep apnea was less likely than not related to his service, and stated that the Veteran's obesity was the likely cause of any obstructive sleep apnea symptoms. However, the examiner did not address whether a service-connected disability may be responsible for the Veteran's obesity, which served as an intermediate cause of the Veteran's obstructive sleep apnea. At the November 2021 Board hearing, the Veteran's representative raised the contention that the Veteran's service-connected lumbosacral strain and/or migraine disabilities may be the cause of the Veteran's obesity. The representative requested a new VA examination opinion to address this theory of secondary service connection. The Board agrees that an addendum opinion is necessary to address this theory of entitlement. 3. Entitlement to an initial rating in excess of 50 percent for PTSD with TBI 4. Entitlement to an initial compensable rating for migraine headaches The Veteran last underwent a VA psychiatric examination in July 2017 and a headache examination in January 2021. At the November 2021 hearing, the Veteran alleged that both of these conditions have worsened since his last examinations. VA regulations specifically require the performance of a new medical examination when evidence indicates there has been a material change in a disability or that the current rating may be incorrect. Therefore, the Board finds that remand is warranted to afford the Veteran an opportunity to undergo a VA examination to assess the current nature, extent, and severity of his PTSD with TBI and migraine headaches. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); 38 C.F.R. § 3.327. 5. Entitlement to extraschedular TDIU At the Veteran's November 2021 Board hearing, he reported that he stopped working in May of 2020 and that he had been experiencing worsening headache symptoms that caused him to miss work five to six times per month. The Veteran's TDIU claim arose in relation to multiple increased ratings claims addressed herein, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, is part of a claim for increased compensation). Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation because of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, the disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and enough additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). As a preliminary matter, the Veteran's service-connected disabilities have not met the percentage requirements for a schedular TDIU under 38 C.F.R. § 4.16(a) during the appeal period. Currently, the Veteran is service connected for PTSD and TBI with a 50 percent disability rating from February 15, 2017; lumbosacral strain with a 20 percent disability rating from February 15, 2017, and a 10 percent disability rating from July 22, 2013; and tinnitus with a 10 percent disability rating from April 19, 2016. The Veteran also has noncompensable disability ratings for multiple scars, migraine headaches, and IBS. Thus, the Veteran has had a combined disability rating of 60 percent from February 15, 2017. When the percentage requirements are not met, entitlement to a TDIU rating may be considered on an extraschedular basis when the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. See Bowling v. Principi, 15 Vet. App. 1 (2001). However, it may determine whether the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities, and then refer the issue to the Director of the Compensation Service (Director), for a determination in the first instance as to whether the Veteran is entitled to a TDIU rating on an extraschedular basis under 38 C.F.R. § 4.16(b). Pursuant to Ray v. Wilkie, 31 Vet. App. 58, 66 (2019), the U.S. Court of Appeals for Veterans Claims held that when denying an extraschedular TDIU referral to the Director under 38 C.F.R. § 4.16(b), the Board must make two determinations in its decision: (1) that there is not sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable due to service connected disabilities; and (2) that TDIU benefits are not warranted because the veteran is not unable to obtain and sustain financially gainful employment due to service-connected disabilities. In the present matter, there is sufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable due to service-connected disabilities. Records indicate that the Veteran stopped working in approximately May 2020. The Veteran has testified that at the time, he was missing work five to six times per month as a result of migraine symptoms. However, separate treatment reflect that the Veteran's work stoppage was due to his employer closing due to the COVID-19 pandemic. VA examination to determine the present severity of the Veteran's migraines is ordered herein, but there is sufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable due to service-connected disabilities. Accordingly, referral to the Director for extraschedular TDIU consideration is warranted. Finally, the record does not contain a completed VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. While such form is not required, it assists VA with making a determination of entitlement to a TDIU rating when the past work history and educational history are all located in the form. At the November 2021 Board hearing, the Veteran's representative expressed the intent to submit a completed VA Form 21-8940 to assist the development of the Veteran's TDIU claim. However, to date, the Board has not received such a submission. Thus, the Veteran will be asked to complete the form to assist VA with developing and adjudicating this claim. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate clinician to determine the current severity of the Veteran's service-connected migraine headache disability. 2. Schedule the Veteran for a VA psychiatric examination with an appropriate clinician to determine the current severity of the Veteran's service-connected PTSD. 3. Refer the Veteran's claims file to an appropriate clinician for an addendum opinion regarding the etiology of the Veteran's obstructive sleep apnea. The examiner should review the claims file. If the examiner finds that an in-person examination is necessary to provide the requested opinion, then schedule the Veteran for a VA examination. The agency of original jurisdiction should provide the below facts to the examiner. To assist in a review of the claims file, the examiner is informed of the following facts with citations in the record, when applicable: The Veteran served on active duty from May 2010 to July 2013. The Veteran is service connected for a lumbosacral strain, effective as of the Veteran's discharge from active duty in July 2013; and migraine headaches, effective in April 2016. A March 2012 service treatment record shows that the Veteran reported a headache after being hit in the head while playing football in September 2011. There was no loss of consciousness. The Veteran reported having a headache/sensitivity to light for 10 hours, and then resolved. The examiner wrote, "No persistent TBI s[ymptoms] reported." See VBMS entry with document type, "STR Medical," receipt date 08/17/2017, p. 80. A December 2012 service treatment record, in which the Veteran reported experiencing chronic low back pain, shows that the Veteran was documented to be 71 inches tall (approximately 5 feet, 11 inches) and 215 pounds. See VBMS entry with document type, "STR Medical," receipt date 08/17/2017, p. 49. The Veteran reported chronic headaches in March 2014. See VBMS entry with document type, "CAPRI," receipt date 06/26/2017, p. 78. A June 2014 sleep study showed the Veteran to have an apnea index of 2.1 apneas/hour of sleep; a hypopnea index of 4.0 hypopneas/hour with an overall apnea-hypopnea index of 6.1 events per hour. The summary statements were: "Findings related to sleep diagnoses: snoring without major desaturations and with low frequency of apneic events. The events noted were mostly hypopneas, and occur[r]ed mainly in supine position." The Veteran was assessed with no significant obstructive sleep apnea. At the time of the study, the Veteran was noted to be 70 inches tall and weigh 222 pounds. See VBMS entry with document type, "CAPRI," receipt date 10/08/2014, pp. 7-8. An April 2017 VA examination report shows that the examiner determined that the Veteran's headaches do not impact his ability to work. See VBMS entry with document type, "C&P Exam," receipt date 05/12/2017, with "#1" in the subject line, p. 4. An August 2017 VA examiner stated that the Veteran did not have a confirmed diagnosis of obstructive sleep apnea. However, the examiner concluded that the Veteran's obstructive sleep apnea, if found, is at least as likely as not caused and aggravated by post-service weight gain/obesity. See VBMS entry with document type, "C&P Exam," receipt date 08/18/2017, pp. 1-2. A January 2020 VA treatment record showed the Veteran to be 70 inches tall and to weigh 234 pounds. He was noted to be borderline obese. The record reflects that the Veteran stated that he "thinks episodes of witnessed apneas and snoring [are] getting worse since grossly negative sleep study in 2014." See VBMS entry with document type, "CAPRI," receipt date 12/08/2020, p. 128. A January 2021 VA examiner stated that the Veteran is limited from prolonged concentrating and focusing during episodes of headaches. See VBMS entry with document type, "C&P Exam," receipt date 01/28/2021, with "#1" in the subject line, p. 4. The Veteran's representative has raised the contention that the Veteran's obstructive sleep apnea is caused by weight gain attributable to service-connected lumbosacral strain and/or migraines. The examiner's review of the record is NOT restricted to the evidence listed above. This list is provided to assist the examiner in locating potentially relevant evidence. After reviewing the evidence, the examiner is asked the following questions: (1.) Is the Veteran's obesity caused or aggravated by his service-connected lumbosacral strain and/or migraine headaches? Please state upon what facts, medical principles, and/or medical literature the opinion is based. (2.) If the answer to question (1) is positive, is the Veteran's obesity resulting from the service- connected lumbosacral strain and/or migraine headaches a substantial factor in causing obstructive sleep apnea? Please state upon what facts, medical principles, and/or medical literature the opinion is based. (3.) If the answer to (2) is positive, would the obstructive sleep apnea have occurred but for obesity caused or aggravated by the service-connected lumbosacral strain or migraine headaches? Please state upon what facts, medical principles, and/or medical literature the opinion is based. The examiner is asked to provide a rationale for each opinion given. If the examiner is unable to provide an opinion without resorting to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. 4. Provide the Veteran with a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, and request that he complete the form in its entirety to assist VA with adjudicating this claim. 5. Refer the Veteran's TDIU claim to the Director of Compensation Service for extraschedular consideration of entitlement to a TDIU under the provisions of 38 C.F.R. § 4.16(b). A copy of the Director's decision on this claim must be included in the claims file. The Director is put on notice that the Veteran has reported that he earned a bachelor's degree in Business Management in approximately January 2019 and that he last worked as a project engineer for a construction company in May 2020. The Veteran has been asked to complete and return a VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability in order to assist the development of his claim. See VBMS entry with document type, "VA Form 28-1902b, Counseling Record-Narrative Report," receipt date 04/09/2021, pp. 1-3. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Wonderling, 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.