Citation Nr: 21061672 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 15-11 440 DATE: October 5, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to total disability based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from May1995 to May 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In November 2015, the RO awarded a rating of 40 percent for the lumbosacral strain effective December 29, 2014. In addition, the RO awarded a rating of 30 percent for cerebral concussion with headaches effective December 29, 2014. In January 2018, the RO granted a separate compensable rating for the Veteran's headaches because the medical evidence of record demonstrated that the Veteran's headache condition was a separate disability apart from the Veteran's TBI. In April 2019, the case came before the Board. The Board dismissed the Veteran's claims for entitlement to service connection for left hip pain, right hip pain, and face plate pain. In addition, the Board granted entitlement to a rating of 40 percent for the Veteran's traumatic brain injury. Moreover, the Board denied entitlement to a rating in excess of 30 percent for the Veteran's headaches. Furthermore, the Board granted entitlement to a rating of 40 percent for the Veteran's lumbosacral strain from February 2, 2012, to December 28, 2014, and denied entitlement to a rating in excess of 40 percent thereafter. Lastly, the Board remanded the issues of entitlement to service connection for sleep apnea, PTSD, and entitlement to TDIU. In July 2021, the RO issued a rating decision that awarded service connection for PTSD. Thus, this issue is no longer before the Board. 1. Entitlement to service connection for sleep apnea is remanded. In April 2021, the Veteran attended a VA examination for this issue. Following the examination, the VA examiner opined that it is less likely than not the Veteran's sleep apnea was permanently aggravated beyond its natural progression by his service-connected disabilities. However, the Board notes that this negative finding fails to comply with the Court of Appeals for Veterans Claims' (Court) holding in Ward v. Wilkie. Specifically, the Court held that 38 C.F.R. § 3.310(b) does not require permanent aggravation. Ward v. Wilkie, 31 Vet. App. 233, 241-42 (2019); 38 C.F.R. § 3.310(b). Moreover, the Board notes that the Veteran was granted service connection for PTSD, but this disability was not considered in the examiner's medical analysis. Accordingly, for the above stated reasons, the Board finds the April 2021 VA examiner's opinion inadequate and that a remand is required in order to obtain an additional medical opinion that addresses the nature and etiology of the Veteran's disability. 2. Entitlement to total disability based on individual unemployability (TDIU) is remanded. As development of the Veteran's disability claim before the Board may have an impact on the Veteran's TDIU claim, the Board finds these issues to be inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the Board will defer adjudication of the inextricably intertwined TDIU claim at this time. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records from August 6, 2020, to the present. 2. Send the Veteran an additional VA-Form 21-8940 and afford the Veteran an additional opportunity to supply VA with a full work history that encompasses the course of the appeal. 3. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of the Veteran's sleep apnea. The electronic claims file must be reviewed by the examiner. All indicated studies and testing must be conducted, and all pertinent symptomatology must be reported in detail. After a review of the claims file, the examiner should provide answers to the following questions: (A). Is it at least as likely as not (50 percent probability or greater) that the Veteran's sleep apnea, had its onset in service or is caused by or related at least in part to his active service? (B). Is it at least as likely as not that the Veteran's sleep apnea is caused by or aggravated by any of the Veteran's service-connected disabilities or the medications that are prescribed for those disabilities? In providing the requested opinion, the examiner should consider the Veteran's competent lay claims regarding the observable symptoms he has experienced. The VA examination report must include a complete rationale for all opinions expressed. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Rescan, 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.