Citation Nr: 21068678 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 16-00 398 DATE: November 12, 2021 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for a lumbar spine disorder is remanded. Entitlement to total disability for individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from December 1966 to December 1968. The Veteran's service awards include a Purple Heart and Combat Infantry Badge. The Board of Veterans' Appeals (Board) remanded these matters in April 2019 to obtain medical records and medical opinions. The Board then remanded these matters again in March 2021 to obtain adequate medical opinions. Unfortunately, while the Board regrets further delay, another remand is necessary because there was not substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-147 (1999). 1. Entitlement to service connection for sleep apnea, to include as secondary to a service-connected disability, is remanded. The Board finds that a remand is necessary for an addendum medical opinion. Specifically, the Veteran underwent a VA examination in August 2021, and the VA examiner opined that the Veteran's sleep apnea is neither directly connected to active duty service due to a lack of evidence of any evidence of sleep issues during service, nor is his sleep apnea caused or aggravated by his service-connected posttraumatic stress disorder (PTSD). In supporting the negative nexus opinion for secondary service connection due to PTSD, the examiner stated that literature does not support PTSD as a risk factor for obstructive sleep apnea (OSA), but that PTSD causes sleep issues due to anxiety. The examiner noted the physiological differences between sleep disturbances due to OSA as opposed to sleep disturbances due to psychiatric symptoms. However, in an October 2021 brief, the Veteran's representative cited a February 2021 study titled "The Connection Between Sleep Apnea and PTSD" and cited to statistics indicating that people with PTSD have higher incidences of sleep apnea than the general population. As such, an addendum opinion is required to determine whether, based on the evidence of record and the medical literature, it is at least as likely as not that the Veteran's sleep apnea is caused or aggravated by his service-connected PTSD. 2. Entitlement to service connection for a lumbar spine disorder is remanded. The Board finds that a remand is warranted to obtain an addendum medical opinion. Here, the March 2021 Board remand specifically noted that the November 2016 VA examiner provided an inadequate supporting rationale for their negative nexus opinion because they stated that there is no evidence for any complaints of back pain in the Veteran's service treatment records. However, the service treatment records indicate that the Veteran complained of back pain and was treated with aspirin and Darvon in October 1967. Unfortunately, the August 2021 VA examiner supported their negative nexus opinion concerning direct service connection by stating: "[t]here is no evidence that [V]eteran reported with back pain while in active Military." The Board also noted in its March 2021 remand that the Veteran's Purple Heart and Combat Infantry Badge are consistent with the circumstances, conditions, and hardships of such service. 38 U.S.C. § 1154(b). Furthermore, the Veteran's brief from January 2021 cites studies and reports indicating that veterans have higher rates of osteoarthritis than the general population. However, the examiner did not discuss either the studies submitted by the Veteran or his statements of consistent back pain during and service due to his required duties. As a result, the Board finds that an addendum opinion is required. 3. Entitlement to TDIU is remanded. The issue of entitlement to TDIU is inextricably intertwined with the issue of entitlement to service connection for sleep apnea and lumbar spine disability because the outcome of these claims may have a bearing on the Veteran's employability. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The matters are REMANDED for the following action: 1. Forward the claims file to the VA examiner who conducted the August 2021 examinations (or another VA examiner if the original examiner is unavailable) for service connection for sleep apnea and a lumbar spine disability. The examiner should respond to the following inquiries: (a.) As to sleep apnea, is it at least as likely as not (i.e. a 50 percent or greater probability) that the diagnosed condition is attributable to service, to include as secondary to the Veteran's service-connected PTSD? In rendering these opinions, the examiner should consider the study suggesting such a connection cited in the Veteran's Appellate Brief from October 2021, as well as the Veteran's lay contentions of suffering symptoms since service. (b.) As to any lumbar spine disabilities, is it at least as likely as not (i.e. a 50 percent or greater probability) that the diagnosed condition(s) is attributable to service? In rendering this opinion, the examiner should consider the medical literature and reports submitted by the Veteran in his January 2021 Appellate Brief suggesting higher rates of osteoarthritis in veterans, as well as the Veteran's lay contentions of suffering symptoms during and since service. The examiner should consider any statements made by the Veteran regarding any in-service injuries as factual, based on his status as a combat veteran. A complete opinion for any rationale expressed should be provided. A new examination is not necessary unless deemed so by the examiner. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Veltri, Associate Counsel