Citation Nr: 21072164 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 16-03 345 DATE: December 2, 2021 REMANDED Entitlement to service connection for sleep apnea, including as secondary to posttraumatic stress disorder (PTSD), is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1974 to November 1974, from June 1996 to March 1997, and from November 2004 to January 2006. These matters come before the Board of Veterans' Appeals (Board) on appeal of a December 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned in June 2019. In July 2020, the Veteran was notified that a transcript of this hearing was unavailable. He was given the opportunity to request an additional Board hearing. As of the date of this decision, the Veteran has not requested an additional hearing. The Board previously remanded the issues addressed below in December 2020 and August 2021 decisions. 1. Entitlement to service connection for sleep apnea, including as secondary to posttraumatic stress disorder (PTSD), is remanded. A remand by the Board confers on a Veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. If the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). VA has a duty to ensure any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (overruled on other grounds, Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)). A medical opinion is adequate where it is based upon consideration of the full medical history and describes a disability in sufficient detail so that the Board's evaluation will be fully informed. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). In August 2021, the Board remanded the Veteran's claim of entitlement to service connection for sleep apnea to obtain an addendum etiology opinion, with a full supporting rationale, to address whether the Veteran's sleep apnea was aggravated by his service-connected PTSD. In September 2021, a VA examiner opined the Veteran's sleep apnea was less likely than not aggravated by his PTSD. In support, she observed the Veteran was diagnosed with sleep apnea in May 2012, fitted for a C-PAP machine in January 2013, and returned to the sleep disorder clinic for a replacement C-PAP machine in March 2019. She stated the medical records did not show frequent visits for "sleep apnea related issues" and she concluded sleep apnea was not aggravated beyond its natural progression by the Veteran's PTSD. This rationale is incomplete and insufficient to support the etiology opinion. The examiner opined there was no evidence of aggravation based only on the lack of contemporaneous treatment records. She did not discuss the Veteran's sleep symptoms due to sleep apnea, sleep symptoms due to PTSD, or how these symptoms would interact. Without additional analysis, the Board is unable to evaluate the claim. See Stefl, supra; also see generally Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (that reports of symptomatology are not supported by contemporaneous clinical evidence does not render them inherently not credible). The opinion does not fulfill the prior remand directives and an additional etiology opinion must be obtained. See Stegall, supra. Additionally, VA treatment records include a January 2012 primary care note recommending the Veteran undergo a sleep study at the East Orange, New Jersey VA medical center. January 2021 and September 2021 VA sleep apnea etiology opinions refer to a May 2012 sleep study. Currently, this May 2012 sleep study is not included in the claims file. Outstanding VA treatment records, including records from the East Orange VA medical center must be obtained and associated with the claims file. If the May 2012 sleep study was not conducted at the East Orange VA medical center, additional efforts must be made to obtain a copy of the study. 2. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. Where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The issue of entitlement to a TDIU remains intertwined with the issue of entitlement to service connection for sleep apnea. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records, including a May 2012 sleep study which may have been conducted at the East Orange, New Jersey VA medical Center. 2. If the outstanding VA treatment records do not include a May 2012 sleep study, ask the Veteran to identify the location where he underwent the May 2012 sleep study and to complete a VA Form 21-4142 for this treatment location (if necessary). Make two requests for the authorized records from this location, unless it is clear after the first request that a second request would be futile. 3. Obtain an addendum etiology opinion, from a clinician who has not previously reviewed the Veteran's claims file. If the clinician determines an examination is necessary to provide the requested opinion, schedule an examination. (Continued on the next page) The examiner must state whether the claimed sleep apnea is at least as likely as not (50 percent probability or greater) aggravated by the Veteran's service-connected PTSD. A full rationale supporting this opinion must be included. The sleep symptoms associated with sleep apnea and with PTSD, as well as the interaction, if any, between these symptoms must be discussed. The absence of contemporaneous medical treatment records, without any additional explanation, is an insufficient rationale to support a finding that sleep apnea was not aggravated by PTSD. The examiner is advised aggravation means an increase in the severity of the underlying disability beyond its natural progression. If aggravation is found, there should be an attempt to quantify the degree of additional disability resulting from the aggravation. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jeanne Celtnieks 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.