Citation Nr: 21069905 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 15-45 566 DATE: November 22, 2021 ORDER The claim of entitlement to service connection for obstructive sleep apnea is granted, subject to the criteria applicable to the payment of monetary benefits. The claim of entitlement to service connection for a headache disorder is granted, subject to the criteria applicable to the payment of monetary benefits. The claim of entitlement to a left knee disorder is denied. The claim of entitlement to a higher disability rating for degenerative arthritis of the right shoulder, rated as 10 percent prior to November 25, 2020, and 20 percent thereafter is denied. The claim of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted, subject to the criteria applicable to the payment of monetary benefits. REMANDED The claim of entitlement to service connection for a low back disorder is remanded. The claim of entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. The Veteran's obstructive sleep apnea is aggravated by his service-connected posttraumatic stress disorder (PTSD) with major depressive disorder. 2. The Veteran's headache disorder is caused and/or aggravated by his service-connected PTSD with major depressive disorder and obstructive sleep apnea. 3. The Veteran's left knee disorder did not originate in service or within one year thereafter and is not otherwise etiologically related to service. 4. Prior to November 25, 2020, the Veteran's right shoulder disorder did not cause or more nearly approximate motion limited to shoulder level, ankylosis, or nonunion of the clavicle or scapula impairment with loose movement. 5. Beginning on November 25, 2020, the Veteran's right shoulder disorder did not cause or more nearly approximate motion limited midway between the side and shoulder level or ankylosis. 6. Resolving all reasonable doubt in the Veteran's favor, the evidence of record demonstrates that his service-connected disabilities rendered him unable to obtain or maintain a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for establishing entitlement to service connection for a headache disorder have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for establishing entitlement to service connection for a left knee disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. Prior to November 25, 2020, the criteria for a rating in excess of 10 percent for the service-connected right shoulder disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Code, 5201. 5. Beginning on November 25, 2020, the criteria for a rating in excess of 20 percent for the service-connected right shoulder disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Code 5201. 6. The criteria for establishing entitlement to TDIU benefits have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Marine Corps from October 1974 to November 1976. In December 2018, the Board remanded the claim for additional development. A claim for TDIU has been reasonably raised by the record. The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a TDIU due to a service-connected disability is part and parcel of an increased rating claim when such claim is raised by the record. Service Connection Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310 (a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310 (b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). 1. Entitlement to service connection for obstructive sleep apnea. Please see discussion in paragraph 2. 2. Entitlement to service connection for a headache disorder. The Veteran asserts that his obstructive sleep apnea is secondary to his service-connected PTSD with major depressive disorder. He also contends that his service-connected psychiatric disorder and his obstructive sleep apnea caused and/or aggravated his headaches. The medical evidence of record includes a diagnosis of obstructive sleep apnea. A May 2018 headaches disability benefits questionnaire completed by M.B., M.D. included a diagnosis of tension headaches. In May 2018, Dr. B. noted that the Veteran's psychiatric disorder was manifested by panic attacks, ongoing depressed mood, generalized anxiety, social isolation, irritability, difficulty staying asleep, restlessness, and feeling shaky. Dr. B. also noted Veteran's report of not using his CPAP due to difficulty with the mask and his need for a new CPAP. The Veteran stated that when his psychiatric symptoms increased, he felt anxious and smothered, and was unable to use his CPAP. Dr. B. stated that the Veteran's inability to use a CPAP every night greatly aggravated the effects of his sleep apnea. The May 2018 headaches DBQ documented the Veteran's report of headaches that occurred several times per month that were precipitated by stress caused by his service-connected psychiatric disorder. An increase in his psychiatric symptoms resulted in a headache and the need to lie down in a dark quiet room for relief. Dr. B. opined that the Veteran's psychiatric disorder and obstructive sleep apnea more likely than not both caused and permanently aggravated the Veteran's headaches. Dr. B. cited to medical research which showed that patients with mental health disorders are more likely to develop headaches because pain and mood are regulated by the same part of the brain. Also, a recent study showed that mental health disorders can both cause and/or aggravate headaches. Dr. B. also explained that medical research showed that headache disorders are associated with patterns of sleep disturbance. It was noted that sleep apnea is a major cause of headaches. VA psychiatry records dated throughout the appeal period noted that the Veteran was partially compliant with his CPAP because of claustrophobia from the nasal mask. It was reported that he used a CPAP five nights per week. Following a review of the medical records, the Board finds that service connection is warranted for obstructive sleep apnea and headaches. The May 2018 opinion from Dr. B. showed that the Veteran's obstructive sleep apnea is aggravated by his service-connected psychiatric disorder. Dr. B. also opined that the Veteran's service-connected psychiatric disorder and obstructive sleep apnea caused and aggravated his headaches. The Board considers the May 2018 opinions to be highly probative as the examiner reviewed the Veteran's claims file, cited to lay evidence, referenced medical literature, and supported the opinions with well-reasoned rationale. Also, there are no contrary, probative medical opinions of record. With resolution of all reasonable doubt in the Veteran's favor, it is concluded that the evidence supports service connection for obstructive sleep apnea and headaches. 38 U.S.C. § 5107 (b). 3. Entitlement to service connection for a left knee disorder. The Veteran seeks service connection for a left knee disorder. The Veteran's service treatment records are negative for a left knee disorder. His November 1976 separation examination showed that his lower extremities were clinically normal. Post-service treatment records include an October 2013 private treatment record. It was noted that the Veteran underwent a left knee replacement in 2011 to treat advanced arthritis that he attributed to a 1986 motorcycle accident. The Board finds that service connection is not warranted for a left knee disorder. With the exception of filing a claim, the Veteran has offered little detail regarding how his left knee disorder is related to service. There is no competent opinion of record linking the left knee disorder to service. Additionally, presumption of service connection for chronic diseases diagnosed within one year following discharge from active duty or on the basis of continuity of symptomology is not warranted in this case. The evidence demonstrates that the Veteran's left knee disorder was diagnosed more than one year after his discharge from service. 38 C.F.R. § 3.307 (a). Moreover, any allegation of a continuity of left knee symptomatology since service is inconsistent with the evidence of record. As such, presumptive service connection, to include on the basis of continuity of symptomatology is not warranted for his left knee disorder. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker, supra. While the Veteran believes that his left knee disorder is related to service, there is no indication that the Veteran has had any specialized education, training, or experience to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this regard, the diagnosis or etiology of his left knee disorder is a matter that is not capable of lay observation and requires medical expertise to determine. Accordingly, his opinion as to the diagnosis or etiology of his left knee disorder is not competent medical evidence. In conclusion, the Board finds that service connection for a left knee disorder is not warranted. In reaching the above conclusion, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine does not apply, and service connection must be denied. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 and Schafrath v. Derwinski, 1 Vet. App. at 589, the Board has reviewed all evidence of record pertaining to the history of the service-connected disability under appeal. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability under review. In addition, the Board notes that it has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although there is an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). As such, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran's claims. 4. Entitlement to a higher disability rating for degenerative arthritis of the right shoulder, rated as 10 percent prior to November 25, 2020, and 20 percent thereafter. The Veteran's left shoulder disability is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5201. Prior to February 7, 2021, under Diagnostic Code 5201 (pertaining to limitation of motion of the arm), limitation of motion at shoulder level warrants a 20 percent rating for both the major and minor arms. With limitation of the arm midway between side and shoulder level, a 30 percent rating is warranted for the major arm and a 20 percent rating is warranted for the minor arm. With limitation of the arm to 25 degrees from the side a 40 percent rating is warranted for the major arm and a 30 percent rating is warranted for the minor arm. Beginning February 7, 2021, under Diagnostic Code 5201, limitation of motion at shoulder level (flexion and/or abduction limited to 90 degrees) warrants a 20 percent for both the major and minor arms. With limitation of the arm midway between side and shoulder level (flexion and/or abduction limited to 45 degrees) a 30 percent rating is warranted for the major arm and a 20 percent rating is warranted for the minor arm. With limitation of the arm to 25 degrees from the side a 40 percent rating is warranted for the major arm and a 30 percent rating is warranted for the minor arm. Other Diagnostic Codes that evaluate impairment resulting from disorders of the shoulder and arm include Diagnostic Code 5200 (ankylosis of scapulohumeral articulation), Diagnostic Code 5202 (impairment of the humerus), and Diagnostic Code 5203 (impairment of the clavicle or scapula.) Diagnostic Code 5200 provides that ankylosis of the scapulohumeral articulation (the scapula and humerus move as one piece) of the major upper extremity is rated 30 percent when it is favorable, with abduction to 60 degrees and able to reach mouth and head. A 40 percent rating is assigned with intermediate ankylosis (between favorable and unfavorable); and it is rated 50 percent when unfavorable, with abduction limited to 25 degrees from side. See 38 C.F.R. § 4.71a, Diagnostic Code 5200 and Note. Diagnostic Code 5202 provides a 20 percent evaluation for malunion of the major humerus with a moderate deformity, and a 30 percent evaluation with a marked deformity. A 20 percent evaluation is also warranted for recurrent dislocation of the major humerus at the scapulohumeral joint with infrequent episodes and guarding of movement only at the shoulder level, and a 30 percent rating is warranted for frequent episodes and guarding of all arm movements. Impairment of the major humerus is rated at 50 percent if there is a fibrous union, 60 percent if there is nonunion or false flail joint, and 80 percent if there is loss the head of humerus, with flail shoulder. See 38 C.F.R. § 4.71a, Diagnostic Code 5202. Diagnostic Code 5203 provides a 10 percent evaluation for malunion of the clavicle or scapula or nonunion without loose movement. A 20 percent evaluation is warranted for nonunion of the clavicle or scapula with loose movement or dislocation of the clavicle or scapula. See 38 C.F.R. § 4.71a, Diagnostic Code 5203. For VA purposes, normal range of shoulder motion is: forward elevation (flexion) 0 to 180 degrees; shoulder abduction 0 to 180 degrees; internal rotation 0 to 90 degrees; and external rotation 0 to 90 degrees. Lifting the arm to shoulder level is lifting it to 90 degrees. See 38 C.F.R. § 4.71, Plate I. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that increased evaluations are not warranted for the Veteran's service-connected right shoulder disorder for either period on appeal. Initially, the Board notes that the Veteran is right hand dominant. A review of the medical evidence shows that there is no evidence of record that the Veteran had limitation of motion at shoulder level prior to November 25, 2020. The January 2014 VA examination report did not include specific range of motion findings recorded in degrees, however, the VA examiner found that there was no limitation of motion in flexion, extension, internal rotation, or external rotation. It was noted that the Veteran's right shoulder disorder was asymptomatic. A March 2019 VA treatment record noted increased right shoulder pain and decreased range of motion secondary to pain, however specific range of motion findings recorded in degrees were not provided. A March 2019 x-ray revealed a mild contour irregularity of the distal third right clavicle, possibly from prior fracture, as well as mild to moderate degenerative changes. Such evidence does not suggest limitation of motion at shoulder level. For the period beginning on November 25, 2020, there is no evidence of record that the Veteran had limitation of the arm midway between side and shoulder level (flexion and/or abduction limited to 45 degrees), or limitation of the arm to 25 degrees from the side. The November 2020 VA examination report shows flexion to 170 degrees and abduction to 165 degrees. The July 2021 VA examination report showed flexion to 165 degrees and abduction to 165 degrees. The Board has considered whether separate, additional ratings are warranted for the right shoulder. In this regard, the VA examination reports noted malunion of the right clavicle, which would warrant a maximum rating of 10 percent under Diagnostic Code 5203. Diagnostic Code 5203 for impairment of the clavicle or scapula also specifically provides for an alternative rating based on "impairment of function of the contiguous joint." See 38 C.F.R. § 4.71a. In this respect, the Veteran has already been assigned 10 and 20 percent ratings for limitation of motion of the right arm (contiguous joint) under Diagnostic Code 5201. Therefore, to assign yet another separate, additional compensable percent rating under Diagnostic Code 5203 would constitute pyramiding. That is, the symptoms of impairment of function to the right shoulder under Diagnostic Codes 5201 and 5203 are overlapping in the instant case. The manifestations of right shoulder degenerative arthritis are not shown to be separate and distinct in this case. Evaluation of the same disability or the same manifestations of disability under multiple diagnoses (i.e., pyramiding) is to be avoided. 38 C.F.R. § 4.14. Thus, a separate, additional compensable rating for the right shoulder is not warranted under Diagnostic Code 5203. The Board has also considered the provisions of 38 C.F.R. § § 4.40, 4.45, 4.59, and the holding in DeLuca. However, increased evaluations for the Veteran's right shoulder disorder is not warranted on the basis of functional loss due to pain or fatigue in this case, as the Veteran's symptoms and impairment are supported by pathology consistent with the assigned 10 and 20 percent ratings, and no higher. In this regard, the Board acknowledges the Veteran's complaints of pain and stiffness. The evidence indicates that the Veteran has range of motion on testing that is consistent with the current ratings assigned, even accounting for further limitation due to pain and/or following repetitive motion exercises. The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant increased evaluations. The November 2020 VA examiner found that there was additional loss of function with repeated use over time; however, the VA examiner estimated that the Veteran's flexion and abduction were each limited to, at most, an additional 5 degrees. The November 2020 and July 2021 VA examiners further noted that the Veteran did not have muscle atrophy. The Board finds that the effect of the pain in the Veteran's right shoulder is contemplated in the currently assigned 10 and 20 percent ratings and that he does not more nearly approximate the criteria for 20 and 30 percent ratings. The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant increased ratings throughout the appeal. Based on the foregoing, the Board finds that the weight of the evidence is against an increased rating for the Veteran's service-connected right shoulder disorder. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied. Gilbert, 1 Vet. App. 49 (1990). 5. Entitlement to a TDIU. The Veteran contends that he is entitled to TDIU benefits. After reviewing the evidence of record, the Board finds that TDIU benefits are warranted. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A TDIU may be assigned when the schedular rating for service-connected disabilities is less than 100 percent when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, it is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16. A finding of total disability is appropriate, "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340 (a)(1), 4.15. "Substantially gainful employment" is that employment, "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16 (a). Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop). Id. In determining whether unemployability exists, consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Throughout the period on appeal, service connection has been in effect for PTSD with major depressive disorder and opiod use disorder, rated as 70 percent disabling; right shoulder degenerative arthritis, rated as 10 percent disabling prior to November 25, 2020, and 20 percent disabling thereafter; tinnitus rated as 10 percent disabling; and bilateral hearing loss rated as noncompensable. As discussed above, service connection for obstructive sleep apnea and a headache disorder has been granted herein and the disorders have yet to be rated. Even so, his combined rating throughout the period on appeal is greater than 70 percent. As such, the schedular criteria for TDIU are met. The evidence shows that the Veteran completed the 10th grade and obtained his commercial driver's license in 1978. He was employed by the City of Philadelphia Department of Sanitation from June 1978 to June 2013 when he retired. His job title was initially a crewmember, which entailed picking up garbage. He later was promoted to truck driver of a garbage truck. Resolving all doubt in favor of the Veteran, the Board finds that the service-connected disorders rendered him unable to maintain substantially gainful employment consistent with his education and occupational background. With regard to his psychiatric disorder, the medical evidence shows that the Veteran endorsed symptoms of verbal aggression and irritable mood, symptoms that affected his work toward the end of his career. He reported discord with his coworkers and certain residents with whom he interacted with on his trash route. The Veteran reported that his symptoms increased since his retirement. The medical evidence indicates that an increase in his psychiatric symptoms caused his headache symptoms. His headache symptoms included sensitivity to light, sensitivity to sound, changes in vision, dizziness, and disturbed concentration. His obstructive sleep apnea was manifested by excessive daytime sleepiness, which would impact his ability to be alert and productive at any job. The Board also finds that his right shoulder disorder would prevent manual labor. A July 2021 VA shoulder examination report described functional loss as difficulty with lifting overhead, pushing, pulling, reaching, and holding objects overhead or laterally for any period of time. In sum, the Board is satisfied that the service-connected disabilities have been so severe as to render the Veteran unable to maintain any form of substantially gainful employment consistent with his education and occupational background. Accordingly, a TDIU is warranted. REASONS FOR REMAND 6. The claim of entitlement to service connection for a low back disorder is remanded. Please see discussion in paragraph 7. 7. The claim of entitlement to service connection for hypertension is remanded. The Board notes that a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In December 2018, the Board remanded the claims to obtain the Veteran's service medical records and personnel records from his period of service with the Marine Corps Reserve. A review of the claims file shows that the AOJ submitted two requests to the National Personnel Records Center (NPRC) to obtain the Veteran's personnel records. One request was for his personnel records from his period of active duty service and the other was for his reserve personnel records. In response to the request for the reserve personnel records, NPRC referenced the earlier request for the active duty personnel records. NPRC stated that the record had been identified and to resubmit the request if necessary. It appears that NPRC provided the Veteran's active duty service personnel records, but not the personnel records from his reserve service and the AOJ did not resubmit the request. In addition, the AOJ did not obtain the Veteran's service treatment records from his period of service with the Marine Corps Reserve. Accordingly, a remand is required to obtain the records. With respect to his hypertension claim, an April 2018 VA treatment record indicated that uncontrolled obstructive sleep apnea can worsen hypertension control. The Board finds a remand is required to obtain a medical opinion to determine whether his hypertension was caused or aggravated by his obstructive sleep apnea. The matters are REMANDED for the following action: 1. The AOJ should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims. If any requested records are not available, the record should be annotated to reflect this fact and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 2. Contact any appropriate source to obtain any Marine Corps Reserves service treatment and personnel records. 3. Thereafter, the AOJ should afford the Veteran a VA examination by a physician with sufficient expertise, to determine the nature of the Veteran's hypertension. All pertinent evidence of record must be made available to and reviewed by the examiner. Any necessary tests and studies should be accomplished. Following a review of the relevant records and lay statements, the examiner must provide an opinion as to whether it is at least as likely as not that the Veteran's hypertension was caused or aggravated by his service-connected myositis obstructive sleep apnea. The rationale for all opinions expressed must also be provided. If the examiner is unable to provide any required opinion, he or she should explain why. If an opinion cannot be provided without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, examiner should identify the additional information that is needed. CONTINUED ON NEXT PAGE 4. Then, readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. McKinley, 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.