Case A25110004

Summary

The Veteran served in the United States Coast Guard from October 1987 to October 1993. This case comes before the Board of Veterans' Appeals (Board) on appeal from August and November 2024 rating decisions concerning entitlement to an earlier effective date for a Total Disability based on Individual Unemployability (TDIU) rating and service connection for obstructive sleep apnea. The Board granted entitlement to an earlier effective date of February 2, 2023, for the TDIU rating, finding that the Veteran's service-connected disabilities precluded him from substantially gainful employment as of that date, which fell within the one-year look-back period from his intent to file. The Board noted that the TDIU rating was granted effective October 10, 2023, the date of the intent to file, but found that the Veteran became unable to work on February 2, 2023, based on his depressive disorder and tinnitus. The Board remanded the claim for service connection for sleep apnea due to inadequate VA medical opinions. Specifically, the Board found the initial opinion regarding asbestos exposure and sleep apnea insufficient for failing to apply findings to the Veteran's specific case. Additionally, the Board identified errors in opinions addressing whether sleep apnea was secondary to depressive disorder or tinnitus, as the examiners failed to complete the aggravation section. The Board also noted the RO's failure to obtain necessary opinions regarding the onset of sleep apnea during service and its relation to COPD, depressive disorder with obesity. The case was remanded for multiple addendum opinions to address these issues, including the relationship between sleep apnea, obesity, depressive disorder, and tinnitus, as well as exposure to asbestos and other TERAs.

Rationale

Veteran's service-connected disabilities precluded substantially gainful employment; February 2, 2023, was a factually ascertainable date within the one-year look-back period; Benefit of the doubt afforded to the Veteran

Full Decision Text

Citation Nr: A25110004
Decision Date: 12/22/25	Archive Date: 12/22/25

DOCKET NO. 250121-503196
DATE: December 22, 2025

ORDER

Entitlement to an earlier effective date of February 2, 2023, for a total disability rating based on individual unemployability (TDIU) is granted.

REMANDED 

Entitlement to service connection for obstructive sleep apnea (sleep apnea) is remanded. 

FINDING OF FACT

The Veteran's service-connected disabilities precluded him from securing and maintaining all forms of substantially gainful employment effective February 2, 2023, which was within the one-year look-back period from the October 2023 Intent to File a Claim.  

CONCLUSION OF LAW

The criteria for an earlier effective date of February 2, 2023, for a TDIU rating have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.400, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Coast Guard from October 1987 to October 1993. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from August and November 2024 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO), also known as the Agency of Original Jurisdiction (AOJ). In the January 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket.

Therefore, for the issue of an earlier effective date for the TDIU rating, the Board may only consider the evidence of record at the time of the August 2024 AOJ decision on appeal. 38 C.F.R. § 20.301. For the issue of service connection for sleep apnea, the Board may only consider the evidence of record at the time of the November 2024 AOJ decision on appeal. Id. Any evidence submitted after the AOJ decisions on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. 

For the issue of entitlement to an earlier effective date for the TDIU rating, if the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

However, because the Board is remanding the claim of entitlement to service connection for sleep apnea, any evidence the Board could not consider will be considered by the AOJ in the adjudication of that claim. 38 C.F.R. § 3.103(c)(2)(ii). 

Entitlement to an effective date prior to October 10, 2023, for a TDIU rating. 

The Veteran contends that he is entitled to an earlier effective date for a TDIU rating. By way of history, the Veteran submitted the October 10, 2023 intent to file a claim which was followed within a year by the April 16, 2024 TDIU application. Then, in the August 2024 rating decision on appeal, the Veteran was granted a TDIU rating effective October 10, 2023, the date of the intent to file a claim. 

Legal Criteria

TDIU earlier effective date claims are not regulated by their own specific subsection of 38 C.F.R. § 3.400. Rather, such TDIU claims are equivalent to increased rating earlier effective date claims, and thus are governed under 38 C.F.R. § 3.400(o). See Hurd v. West, 13 Vet. App. 449 (2000).

The effective date for an award of an increased rating (including TDIU) is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. If the increase is factually ascertainable within one year prior to the receipt of the claim for an increased rating, the rating will be effective as of the date of increase; however, if the increase occurred more than one year prior to the receipt of the claim, the increase will be effective on the date of the
.F.R. § 3.400(o). See Hurd v. West, 13 Vet. App. 449 (2000).

The effective date for an award of an increased rating (including TDIU) is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. If the increase is factually ascertainable within one year prior to the receipt of the claim for an increased rating, the rating will be effective as of the date of increase; however, if the increase occurred more than one year prior to the receipt of the claim, the increase will be effective on the date of the claim. In addition, if the increase occurred after the date of claim, the effective date will be the date of increase. 38 U.S.C. § 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o)(1),(2).

As of March 24, 2015, a claimant, or certain other individuals as specified in section 3.155(b), may indicate a claimant's intent to file a claim for benefits by submitting an intent to file a claim to VA. 38 C.F.R. § 3.155(b). An intent to file a claim must provide sufficient identifiable or biographical information to identify the claimant. Upon receipt of the intent to file a claim, VA will furnish the claimant with the appropriate application form prescribed by the Secretary. If VA receives a complete application form prescribed by the Secretary, as defined in 38 C.F.R. § 3.160(a), appropriate to the benefit sought within one year of receipt of the intent to file a claim, VA will consider the complete claim filed as of the date of the intent to file a claim was received. 38 C.F.R. § 3.155(b).

Analysis

Although the Veteran has already been granted the TDIU rating as of the date of the intent to file a claim, since a claim for a TDIU rating is essentially an increased rating claim, the Board must consider the one-year look-back period, i.e. from October 10, 2022. See 38 C.F.R. § 3.400(o); Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010). The Veteran stated in the April 2024 TDIU application that he became too disabled to work on February 2, 2023, due to his depressive disorder and tinnitus. Therefore, in giving the Veteran the benefit of the doubt, the Board finds that February 2, 2023 is a factually ascertainable date within the one-year look-back period when the Veteran was not capable of securing or following substantially gainful employment due to his service-connected disabilities. See 38 C.F.R. § 4.16(a). Accordingly, entitlement to an earlier effective date of February 2, 2023, for a TDIU rating is granted. 

REASONS FOR REMAND

Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159.

Entitlement to service connection for sleep apnea. 

The Veteran contends that he is entitled to service connection for sleep apnea. The Veteran has multiple theories of entitlement including that his sleep apnea began during active service, is related to his toxic exposure risk activities (TERA) of asbestos exposure, is secondary to his service-connected chronic obstructive pulmonary disease (COPD), depressive disorder, and/or tinnitus, and/or is related to his depressive disorder with obesity as an intermediate step. See October 2023 Application for Disability Compensation and Related Compensation Benefits, October 2023 Veteran statement, July 2024 higher-level review informal conference worksheet. 

The Veteran was afforded multiple VA medical opinions for some of those theories of entitlement. First, the October 2023 VA medical opinion was obtained to determine whether the Veteran's sleep apnea was related to his TERA of asbestos exposure. See October 2023 TERA memorandum. In the October 2023 VA medical opinion, the examiner explained the mechanics of sleep apnea and stated that the Veteran's sleep apnea was primarily caused by weight gain or obesity. The examiner further stated that there was no medical literature that supported an association between sleep apnea and the Veteran's exposure events. Therefore, the examiner opined that the Veteran's sleep apnea was not caused by his participation
, July 2024 higher-level review informal conference worksheet. 

The Veteran was afforded multiple VA medical opinions for some of those theories of entitlement. First, the October 2023 VA medical opinion was obtained to determine whether the Veteran's sleep apnea was related to his TERA of asbestos exposure. See October 2023 TERA memorandum. In the October 2023 VA medical opinion, the examiner explained the mechanics of sleep apnea and stated that the Veteran's sleep apnea was primarily caused by weight gain or obesity. The examiner further stated that there was no medical literature that supported an association between sleep apnea and the Veteran's exposure events. Therefore, the examiner opined that the Veteran's sleep apnea was not caused by his participation in a TERA. The Board finds that the examiner's opinion is inadequate. The examiner made general statements about the mechanics of sleep apnea and medical literature without applying that to the Veteran's specific case. This was a pre-decisional duty to assist error, and the Board must remand for an addendum opinion. See 38 C.F.R. § 20.802(a). 

In January 2024, a VA medical opinion was obtained in which the examiner opined on whether the Veteran's sleep apnea was secondary to his service-connected depressive disorder and/or tinnitus. Additionally, the September 2024 VA examiner also opined as to whether the sleep apnea was secondary to depressive disorder. In both opinions, the examiners did not complete the aggravation section of the disability benefits questionnaires. A veteran may establish entitlement to secondary service connection if a disability was caused or aggravated by service-connected disabilities. Allen v. Brown, 7 Vet. App. 439, 448 (1995). Therefore, causation and aggravation must be addressed in any medical opinion concerning secondary service connection. Id.; El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). As such, the failure to discuss aggravation in the VA medical opinion was a pre-decisional duty to assist error. See 38 C.F.R. § 20.802(a). Consequently, an addendum opinion is necessary for a VA examiner to opine as to whether the Veteran's service-connected disabilities aggravated his sleep apnea. 

Finally, the AOJ failed to obtain other necessary medical opinions. By way of history, the Veteran was denied service connection for sleep apnea in the February 2024 rating decision. The Veteran submitted the April 2024 higher-level review request, which was followed by the July 2024 higher-level review informal conference. In response, the AOJ found that it committed a duty to assist error. Specifically, in the August 2024 higher-level review return, the AOJ stated that it needed to get an opinion as to whether the Veteran's sleep apnea manifested during service since the Veteran reported during his July 1993 separation examination that he had frequent trouble sleeping. The Board also notes that the Veteran reported sleep troubles during service in February and September 1992 as well. See February and September 1992 service treatment records. Additionally, the AOJ found that an opinion was required with respect to whether the Veteran's sleep apnea was secondary to his service-connected COPD. The AOJ also found that an examiner needed to provide an opinion as to whether the Veteran's sleep apnea was secondary to his depressive disorder with obesity as an intermediate step. See August 2024 rating decision, August 2024 higher-level review return. However, the AOJ failed to actually request or obtain those opinions, which was a pre-decisional duty to assist error. See August 2024 exam scheduling request; 38 C.F.R. § 20.802(a). Therefore, the Board must remand for addendum opinions to correct that error. 

The matters are REMANDED for the following action: 

1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's sleep apnea is at least as likely as not related to and/or began during active service.  

In doing so, the examiner must address the February and September 1992 service treatment records which show that the Veteran was not sleeping, as well as the July 1993 separation examination report of medical history in which the Veteran reported that he had frequent trouble sleeping. 

2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's sleep apnea is related to his TERAs. When providing this opinion, the examiner must consider the total potential exposure through all applicable deployments AND the synergistic, combined effect of all TERAs of the Veteran, including asbestos exposure. 

3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's sleep apnea is due to or aggravated by his service-connected COPD, depressive disorder, and/or tinnitus. 

The examiner is reminded that
2 service treatment records which show that the Veteran was not sleeping, as well as the July 1993 separation examination report of medical history in which the Veteran reported that he had frequent trouble sleeping. 

2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's sleep apnea is related to his TERAs. When providing this opinion, the examiner must consider the total potential exposure through all applicable deployments AND the synergistic, combined effect of all TERAs of the Veteran, including asbestos exposure. 

3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's sleep apnea is due to or aggravated by his service-connected COPD, depressive disorder, and/or tinnitus. 

The examiner is reminded that causation and aggravation are two separate inquiries and both must be addressed in the opinion. 

4. Obtain an addendum opinion from an appropriate clinician regarding questions of: (1) whether the Veteran's obesity is a substantial factor in causing his sleep apnea, (2) if so, is the Veteran's obesity caused or aggravated by his service-connected depressive disorder, (3) would the sleep apnea not have occurred but for the obesity caused or aggravated by the depressive disorder.

 

W. Daknis

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	D. Brodbeck

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.