Citation Nr: 21065991 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 16-40 148 DATE: October 28, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had National Guard service with active service from May to October 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2015 and December 2017 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The claims were previously remanded by the Board in March 2021. 1. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. As noted in the prior March 2021 Board Remand, an opinion was sought as to whether OSA was caused or aggravated by a service-connected disability. The Veteran was afforded a VA examination in April 2021 wherein the examiner noted that the Veteran's OSA was less likely than not proximately due to or the result of the Veteran's service connected nose fracture. However, the examiner did not consider the additional service-connected conditions attributed to his service-connected nose fracture including rhinitis, sinusitis, and migraine headaches. Additionally, no opinion was provided regarding aggravation and the April 2021 VA examiner did not provide an opinion as to direct service connection for sleep apnea. According to both of the Veteran's May 2019 VA Form 21-526EZ, he reported that his sleep apnea began in 1966 and claimed it is due to his service-connected nasal conditions. He also stated during the September 2019 VA examination that he has had symptoms of snoring and poor sleep for at least 20 years. Therefore, a remand is necessary to obtain an adequate VA opinion that addresses all theories of entitlement. 2. Entitlement to a total disability rating based on individual unemployability is remanded. The claim of entitlement to TDIU is remanded pending the adjudication of the service connection claim. As the issues are inextricably intertwined, a remand of the claims for a TDIU is required. The matters are REMANDED for the following actions: 1. Refer the Veteran's claims file to a suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of the Veteran's sleep apnea. An additional physical examination should be performed only if deemed necessary by the VA examiner. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The clinician should note that the Veteran has been diagnosed with OSA in a December 2018 sleep study. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's sleep apnea manifested in or is otherwise causally or etiologically related to his military service, to include his in-service nasal fracture. The examiner should also provide an opinion as to whether it is at least as likely as not that the Veteran's sleep apnea was either caused by or aggravated by his service-connected nasal fracture, rhinitis, sinusitis, and/or migraine headaches. Aggravation means an increase in disability any additional impairment of earning capacity of the nonservice-connected disability. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the diagnosed disability prior to aggravation by the service-connected disability. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. After any additional ratings are assigned, adjudicate the issue of entitlement to TDIU. If referral for extraschedular consideration is needed, that should be undertaken. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Williams, 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.