Citation Nr: 21002270 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 18-14 185 DATE: January 13, 2021 ORDER New and material evidence having been received, the petition to reopen the Veteran’s claim of service connection for an acquired psychiatric disability, to include posttraumatic stress disorder and depressive disorder, is granted. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder and depressive disorder, is granted. Entitlement to a disability rating of 20 percent for service-connected residuals of the left scapula (minor), from June 18, 2017 to June 17, 2018 is warranted. REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. A January 2002 rating decision entitlement to service connection for nervous condition, to include posttraumatic stress disorder. The Veteran was notified of the decision by February 4, 2002 letter. A notice of disagreement was not filed and no new evidence was added to the file within a year of the decision. The unappealed decision became final. 2. Evidence received since the January 2002 rating decision is neither cumulative nor redundant of the evidence of record at the time of the last final denial and relates to an unestablished fact necessary to substantiate a claim of service connection of service connection for an acquired psychiatric disability to include posttraumatic stress disorder. 3. The weight of the probative evidence of record is in relative equipoise as to whether the Veteran’s acquired psychiatric disability, to include posttraumatic stress disorder and depressive disorder, began during active service. 4. Effective June 18, 2018, the Veteran has been assigned the highest disability rating pursuant to 38 C.F.R. § 4.71A, Diagnostic Codes 5203 and 5201. 5. The Veterans medical records indicate an increase in his service-connected disability at least one year prior to the June 18, 2018 filing of his claim for increase in his disability rating. 6. The probative medical evidence of record weighs in favor of a finding that effective June 18, 2017, the Veteran’s service-connected residuals of the left scapula (minor) is manifested by limitation of the shoulder joint. CONCLUSIONS OF LAW 1. New and material evidence has been received since the January 2002 rating decision, denying service connection of acquired psychiatric disability to include posttraumatic stress disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 2. Resolving doubt in favor of the Veteran, the criteria for service connection for acquired psychiatric disability, to include posttraumatic stress disorder and depressive disorder, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for a 20 percent rating for residuals of the left scapula have been met. 38 C.F.R. §§ 3.400 (o)(2); 38 C.F.R. § 4.71a, Diagnostic Codes 5201, 5203. 4. The minimum compensable rating for limitation of the shoulder joint is 20 percent. Sowers v. McDonald, 27 Vet. App. 472, 482 (2016); see 38 C.F.R. § 4.71a, Diagnostic Code 5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has active service from January 1979 to August 1985. This case is before the Board of Veterans’ Appeals (Board) from January 2015 (PTSD and TDIU) and July 2018 (scapula and sleep apnea) rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, the Board issued a decision denying the Veteran’s petition to reopen his claim of service connection for PTSD, also claimed as nervous condition, and now recharacterized as an acquired psychiatric disorder. That decision was subsequently vacated and is again before the Board for appellate consideration. By that same December 2018 decision, the Board remanded the Veteran’s TDIU claim for referral to the Director of Compensation Service for extraschedular consideration pursuant to 38 C.F.R. § 4.16 (b). The Director’s denial is of record (2/19/2020 VA Memo). Also, in March 2020, the Board remanded the Veteran’s claim of entitlement to a compensable rating for residuals, fracture of the left scapula for a new VA examination to assess the current severity of the Veteran’s left shoulder. A new examination was obtained (6/17/2020 C&P Exam). Finding there has been substantial compliance with the Board’s remand directives in accordance with Stegall v. West, 11 Vet. App. 268, 271 (1998), the Board may proceed with appellate review of this claim. 1. New and Material Evidence. In January 2002, the AOJ denied service connection for a nervous condition, to include posttraumatic stress disorder, finding that the Veteran’s condition neither occurred in nor was caused by service, there was no evidence of chronic nervous condition in service, and no evidence of a verifiable in service stressor on which to base a current diagnosis of PTSD. (1/30/2002 Rating Decision –Codesheet; 1/30/2002 Rating Decision (e.g. VA Form 21-6796)). The Veteran was notified of the decision by February 4, 2002 letter (2/04/2002 Notification Letter). A notice of disagreement was not filed, and no new evidence was added to the file within a year of the decision. The unappealed decision became final. Where a claim has been finally adjudicated, a claimant must present new and material evidence in order to reopen the previously denied claim. New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial, and it must raise a reasonable possibility of substantiating the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). For the purpose of reopening a claim, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence that raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Since the January 2002 decision became final, a psychological statement by a private physician was received and includes a nexus opinion that the Veteran suffers from unspecified depressive disorder that more than likely began in military service and has continued uninterrupted to the present (10/11/2018 VA Examination, pgs. 60-68). The practitioner’s opinion also provides the Veteran’s depression has been aggravated by his service-connected disabilities. Also of record since the prior final decision, are five journal articles submitted in support of the Veteran’s claim (10/11/2018 VA Examination, pgs. 80-83; 10/11/2018 Correspondence). The Board finds that the medical opinion and other documentary evidence provided by the Veteran is “new” as it had not been previously submitted to agency decision makers, and “material” as it directly pertains to the basis for the prior final denial that the Veteran’s acquired psychiatric disorder was caused by service Accordingly, finding new and material evidence has been received since the prior final decision, the Veteran’s petition to reopen the claim of service connection is granted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Secondary service connection may be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310 (b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). 2. Acquired psychiatric disability, to include posttraumatic stress disorder and depressive disorder The Veteran has contended that his posttraumatic stress disorder and depressive disorder was caused by service (11/06/2014 VA 21-0820 Report of General Information; 10/04/2018 Correspondence). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the in-service stressor occurred. 38 C.F.R. § 3.304 (f). If a PTSD claim is based on in-service personal assault, evidence from sources other than the Veteran's service records may corroborate the Veteran's account of the stressor incident. Gallegos v. Peake, 22 Vet. App. 329 (2008). Examples of such evidence include but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. 38 C.F.R. § 3.304 (f)(3). Medical opinion evidence may also be submitted for use in determining whether the occurrence of a stressor is corroborated. Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011); see also 67 Fed. Reg. 10,330, 10,330-31 (Mar. 7, 2002). This evidence need not be contemporaneous with service. In Menegassi, the U.S. Court of Appeals for the Federal Circuit concluded that evidence from 2001 could be used to corroborate a claim that an assault occurred in 1984. The Board may still weigh any such medical opinion evidence in context with other record evidence and the mere submission of a medical opinion does not preclude the Board from making a factual determination regarding the weight to be given to that opinion. VA has defined personal trauma very broadly. Personal trauma for the purpose of VA disability compensation claims based on PTSD refers to stressor events involving harm perpetrated by a person who is not considered part of an enemy force. Examples include assault, battery, robbery, mugging, stalking, and harassment. Military sexual trauma is a subset of personal trauma and refers to sexual harassment, sexual assault, or rape that occurs in a military setting. See VBA Manual M21-1, IV.ii.1.D.5.a. (Change date August 2, 2019). The Veteran has current diagnoses of PTSD, PTSD with military sexual trauma noted, and unspecified depressive disorder (7/15/2014 CAPRI, pg. 76; 10/07/2014 CAPRI, pg. 552; 2/14/2020 VA Examination, pg. 1). The question for the Board is whether either disability began during active service or is related to in-service injury or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The Veteran was qualified for enlistment, clinically evaluated as normal. Although family problems were noted, they were not considered disqualifying (10/22/1985 STR – Medical, pgs. 4-5; 11/30/1987 Medical Treatment Record - Government Facility, pg. 9). During service, the Veteran was treated for anxiety, noted as stress related, and was prescribed Valium (12/27/1988 STR – Medical, pg. 4). The Veteran’s service treatment record includes an inpatient treatment record coversheet, revealing in-service behavioral issues to include impairment in social and occupational functioning due to alcohol use, to include counseling statements for drunk and disorderly and poor work performance. Also noted was precipitating stress due to permanent change of station to the Republic of Korea (10/22/1985 STR – Medical, pg. 16). Although upon separation the Veteran was clinically evaluated as normal, he reported complaints of depression or excessive worry and nervous troubles (10/22/1985 STR – Medical, pg. 10). Post-service medical records reflect two potential in-service stressors related to the Veteran’s diagnosed PTSD: military sexual trauma and a war experience (7/14/2020 CAPRI, pg. 27). Childhood, pre-service trauma is also noted throughout the Veteran’s post service record. Post-service medical records establish years of treatment for psychological issues. Treatment notes dated in October 1999 include the Veteran’s description of picking up a dead newborn while serving in Korea (9/25/2000 Medical Treatment Record - Government Facility, pg. 8), and December 1999 notes reference sexual trauma, although it is unclear by the note when the trauma occurred. In notes from early 2018 the Veteran endorsed military sexual trauma, described an attack at knife point, and inability to defend himself. He explained that after the attack he began using drugs and getting depressed, having 4-5 disciplinary actions, for getting drunk and fighting (2/24/2020 CAPRI, pgs. 43, 343, 408-9). On the question of whether the Veteran’s current disability is related to his service, a May 2017 private medical opinion of record is in favor of the Veteran’s claim. The May 2017 practitioner provided a positive nexus opinion, that the Veteran suffers from unspecified depressive disorder that more likely than not began in military service and continues uninterrupted to the present (1/31/2020 Disability Benefits Questionnaire (DBQ) - Veteran Provided, pg. 9). The practitioner described the Veteran’s pre-service mental health history as confusing due to conflicting information. The ultimate opinion provided however was that it is unlikely the Veteran developed any mental problems before service. The Board finds this consistent with the entrance physical notation of family problems, which were not considered disqualifying upon entry. The Veteran’s in-service treatment record regarding anxiety indicates it was stress related but does not reference family problems. The Board finds the presumption of soundness is not disturbed in this case. 38 C.F.R. § 1111. The practitioner acknowledged the some of the Veteran’s history was not accurate. The practitioner noted the claims about military sexual trauma were rarely repeated in the records and not mentioned until many years after service. The practitioner explained mental illness can distort the patient’s memory of events. Sometimes, the inaccurate history can be a cry for help. Mentally ill people sometimes do not attach the importance they should to past events. In many cases, such as this one, it can be difficult, if not impossible, to sort out. The practitioner reiterated the first actual documentation in the records of a mental illness is in his military treatment records. Although a current VA psychiatric examination is not of record, the Board finds the private May 2017 positive nexus opinion adequate as it is supported by extensive rationale, and is based on a comprehensive review of the Veteran’s case and history, to include an interview with the Veteran, and references medical literature. The May 2017 opinion, taken in conjunction with the Veteran’s service treatment records evidencing the onset of psychological trouble and post service medical records referencing aspects of his active service in relation to his psychological issues, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current acquired psychiatric disability arose in service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for an acquired psychiatric disability to include posttraumatic stress disorder and depressive disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. In finding entitlement to service connection on a direct basis, the contention that that the Veteran’s depressive disorder was aggravated by or secondary to service-connected disabilities need not be further addressed (2/14/2020 Medical Treatment Record - Non-Government Facility). 3. Compensable disability rating for residuals of the left scapula (minor). The Veteran has been service connected for a residuals of the left scapula since August 31, 1985. By June 18, 2018 correspondence, he claimed entitlement to an increase in his disability rating (6/18/2018 VA 21-526EZ, Fully Developed Claim). By a July 2020 rating decision, the Veteran’s disability rating was increased to 30 percent, effective June 18, 2018, the date of the Veteran’s claim, representing a partial grant of the benefit sought on appeal and the highest rating authorized under 38 C.F.R. § 4.71A, Diagnostic Code 5203-5201 (7/2/2020 Rating Decision - Narrative). In his notice of disagreement, the Veteran appealed both the disability rating and the effective date of his assigned disability rating for residuals of the left scapula (8/20/2018 NOD). However, as noted above, the increase had not even been implemented at the time the notice of disagreement was submitted. As there was no rating increase then at issue it appears the challenged effective date related to the initial grant of service connection, which was not the subject of the challenged decision. Essentially, the effective date claim is amounts to a freestanding claim. Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006). In fact, by letter dated in September 2019, the AOJ informed the Veteran that his notice of disagreement as to the effective date was rejected. No appeal as to the validity of the notice of disagreement has been entered. Accordingly, the instant decision shall not address an effective date claim, though the effective date provisions under 38 C.F.R. § 3.400 are discussed to the extent necessary to address the increased rating itself. The question before the Board, remains whether the Veteran is entitled to a compensable disability rating prior to June 18, 2018 and the Board finds that the evidence suggests an increase to 20 percent is warranted, effective June 18, 2017. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. Under Diagnostic Code 5203, malunion of the clavicle or scapula warrants a 10 percent rating in both the major and minor extremity. Nonunion of the clavicle or scapula without loose movement warrants a 10 percent rating in both the major and minor extremity. Nonunion of the clavicle or scapula with loose movement warrants a 20 percent rating in both the major and minor extremity. Dislocation of the clavicle or scapula warrants a maximum 20 percent rating in both the major and minor extremity. Or rate on impairment of function of the contiguous joint. 38 C.F.R. § 4.71a, Diagnostic Code 5203. Under Diagnostic Code 5201, limitation of motion of the arm at shoulder level warrants a 20 percent rating for both the major and minor extremity. Limitation of motion of the arm midway between side and shoulder warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Limitation of motion of the arm to 25 degrees from side warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint. 38 C.F.R. § 4.71a, Diagnostic Code 5201. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Section 4.59, in pertinent part, states that it "is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint." The minimum compensable rating for limitation of the shoulder joint is 20 percent. Sowers v. McDonald, 27 Vet. App. 472, 482 (2016); see 38 C.F.R. § 4.71a, DC 5201. A 10 percent rating is available for nonunion and malunion of the clavicle or scapula under Diagnostic Code 5203; however, the decision explicitly finds that Diagnostic Code 5203 is not applicable based on finding no impairment of the clavicle or scapula. The Court observed that § 4.59 does not require that all diagnostic codes for the shoulder be considered when determining the minimum compensable rating for the shoulder joint. 27 Vet. App. at 482. The Court indicated that the minimum rating for the shoulder joint, as opposed to any diagnostic code for a shoulder disability, would be assigned under Diagnostic Code 5201 rather than Diagnostic Code 5203 when applying §4.59. Id. Notably, Diagnostic Code 5203 provides that impairment of the clavicle or scapula may alternatively be rated "on impairment of function of [the] contiguous joint," indicating that the diagnostic code itself does not rate "joint" disabilities. 38 C.F.R. § 4.71a. Therefore, the minimum rating for painful motion of the shoulder under 38 C.F.R. § 4.59 is the minimum under Diagnostic Code 5201, 20 percent. In this case, medical evidence of record from December 1998 reveals decreased range of motion of the Veteran’s left (minor) shoulder and prior complaints of left shoulder pain (10/12/2000 Medical Treatment Record - Government Facility, pgs. 97 and 82). In August 2000, chronic left shoulder pain with decreased range of motion was identified (10/12/2000 Medical Treatment Record - Government Facility, pg. 49). Shoulder pain with degenerative joint disease was noted in October 2001 (6/27/2018 CAPRI, pg. 84). In September 2006, the Veteran underwent physical therapy for his left shoulder pain that included numbness of all 5 digits of the left hand resulting in difficulty reaching overhead or out to the side. At that time, the Veteran’s range of motion was limited, with flexion to 70 degrees; internal rotation 20 degrees and external rotation 80 degrees. Pain was noted with positive impingement sign (12/10/2019 CAPRI, pg. 39). The Veteran’s January 2013 active medication list included medication for shoulder pain and in May 2013 the Veteran describe shoulder ache for years (5/28/2013 Medical Treatment Record - Government Facility, pg. 5; 7/15/2014 CAPRI, pg. 108). In October 2014, giveaway weakness in the left shoulder was noted (2/16/2018 Medical Treatment Record - Government Facility, pg. 9). March 2018 treatment notes indicated the Veteran’s left shoulder decreased range of motion, that he was protective and guardive of the shoulder, and complained of pain. Left shoulder and elbow spasms while sleeping were also described (2/24/2020 CAPRI, pgs. 250 and 346) Two VA examinations for the Veteran’s shoulders are of record. A March 2019 examination references complaints of worsening symptoms, noting severe pain and constant throbbing. The Veteran was taking and taking 2 medications for pain. The March 2019 examiner found normal range of motion and indicated that functional ability was not limited by pain, weakness, fatigability, or incoordination during flare up. Aside from finding the examination was neither medically consistent or inconsistent with the Veteran's statements describing functional loss during flare up, the examiner did not address the Veteran’s complaints of worsening pain (3/05/2019 C&P Exam). A June 2020 VA examination of the shoulder was also obtained. The Veteran’s left shoulder range of motion was abnormal, flexion and abduction found to be limited to 90 degrees and both internal and external rotation limited to 70 degrees, found to contribute to functional loss. Additionally, pain was noted to contribute to additional functional loss with the same measurements. During flare ups, due to pain the Veteran’s range of motion of flexion, abduction, internal and external rotation, were all estimated to be limited to 5 degrees (6/17/2020 C&P Exam). The medical evidence reveals the Veteran’s shoulder disability had worsened. Interpreting Burton and Sowers, supra, the minimum rating for painful motion of the shoulder under 38 C.F.R. § 4.59 is the minimum under Diagnostic Code 5201, 20 percent. In this case, the instant claim was received on June 17, 2018. The effective date of such award "shall not be earlier than the date of receipt of application thereof." 38 U.S.C. § 5110 (a). This statutory provision is implemented by regulation which provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (o)(1). 38 C.F.R. § 3.400 (o)(2) provides with regard to disability compensation for a disability for which service connection has already been established, the earliest date that it is factually ascertainable based on all evidence of record that an increase in disability had occurred if a complete claim or intent to file a claim is received within one year from such date, otherwise date of receipt of claim. When medical records indicated an increase in a disability, receipt of such medical records may be used to establish effective dates for retroactive benefits based on facts found of an increase in a disability only if a complete claim or intent to file a claim for an increase is received within one year of the date of the report of examination, hospitalization, or medical treatment. Again, the Veteran’s claim was received on June 18, 2018. However, the Board finds that treatment records include active problem lists identifying left shoulder pain, which weigh in favor of entitlement to the minimum 20 percent disability rating for service-connected residuals of the left scapula (minor), manifesting as a shoulder disability, for the year prior to the filing of the Veteran’s claim, that is June 18, 2017. 38 C.F.R. § 3.400 (o)(2); Burton v. Shinseki, 25 Vet. App. 1 (2011); Sowers v. McDonald, 27 Vet. App. 472, 482 (2016). The Board has considered whether any other diagnostic codes related to disabilities of the shoulder would provide for a higher disability rating. However, the evidence does not reflect that the medical evidence of symptoms of chronic left shoulder pain would warrant a higher rating under a different diagnostic code. See 38 C.F.R. § 4.71a. In conclusion, the Board finds a compensable disability rating of 20 percent for service-connected residuals of the left scapula (minor), from June 18, 2017 to June 17, 2018 is warranted. REASONS FOR REMAND 4. Obstructive sleep apnea The Veteran has claimed that his diagnosed obstructive sleep apnea is related to his service-connected psychiatric disorder (7/15/2014 CAPRI, pg. 1). The Veteran, by this decision is service connected for an acquired psychiatric disability. Of record is a journal article that concludes sleep apnea is associated with a higher prevalence of psychiatric comorbid conditions in Veteran’s Health Administration beneficiaries. The association suggests that patients with psychiatric disorder and coincident symptoms suggesting sleep-disordered breathing, should be evaluated for sleep apnea (11/12/2020 Correspondence, pg. 1). There is no medical evidence of record addressing the article or whether the Veteran’s diagnosed obstructive sleep apnea is secondary to his service-connected acquired psychiatric disability. In situations where there is insufficient medical evidence to decide a claim, the Board must remand the matter for a VA examination to be obtained. McLendon v. Nicholson, 20 Vet. App. 79 (2006). While the Board regrets further delay in the Veteran’s claim, remand is required to obtain a medical examination and nexus opinion. 5. TDIU Because the rating of the Veteran’s service connected acquired psychiatric disability and the claim for sleep apnea, remanded by this decision could impact when the Veteran met the schedular requirements for a TDIU, the Veteran's claim for a TDIU is inextricably intertwined with this remand. The Board cannot fairly proceed in adjudicating the TDIU claim until the other claim has been resolved. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); see also Tyrues v. Shinseki, 23 Vet. App. 166, 178 (2009). The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriately qualified clinician to determine the nature and etiology of his obstructive sleep apnea. The examiner should review the entire claims file and this remand in conjunction with the examination. The examiner should provide an opinion as to whether the Veteran’s obstructive sleep apnea is at least as likely as not (50 percent probability) proximately due to service connected acquired psychiatric disability to include PTSD and depressive disorder. The examiner should address whether it is as likely as not (50 percent probability) that the Veteran’s service connected acquired psychiatric disability to include PTSD and depressive disorder has aggravated his obstructive sleep apnea beyond its natural progression. If aggravation is found, the examiner should identify baseline level of disability prior to such aggravation. The examiner should address the journal article of record that concludes sleep apnea is associated with a higher prevalence of psychiatric comorbid conditions in Veteran’s Health Administration beneficiaries. The association suggests that patients with psychiatric disorder and coincident symptoms suggesting sleep-disordered breathing should be evaluated for sleep and reconcile any conflicting medical evidence of record to the extent possible. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and explain why this is so, (e.g., whether an opinion is beyond what any medical practitioner might be able to provide, based on the evidence of record and current medical knowledge). Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. A. Myers 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.