Citation Nr: 21073365 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 16-58 070 DATE: December 8, 2021 REMANDED Entitlement to a rating in excess of 10 percent prior to November 3, 2016, and in excess of 10 percent from January 1, 2017, for degenerative disc disease of the lumbar spine status post discectomy and lumbar laminectomy is remanded. Entitlement to a rating in excess of 20 percent for degenerative disc disease of the cervical spine status post discectomy is remanded. Entitlement to service connection for sleep apnea with fatigue is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from February 1987 to September 2005. These matters come before the Board of Veterans' Appeals (Board) on appeal from November 2014 and January 2015 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). As an initial matter, although the Veteran requested a Board hearing in her November 2016 substantive appeal to the Board (VA Form 9), she later withdrew her request for a hearing. As such, the Board will proceed with addressing the issues on appeal. The Board also notes that although the Veteran submitted formal TDIU applications (VA Forms 21-8940) in September 2020 and October 2020, because the Veteran raised the issue of unemployability due to her service-connected disabilities during the pendency of her increased rating claims on appeal, TDIU is part and parcel of her increased rating claims pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (the issue of entitlement to TDIU takes its place as part of an increased rating claim where a claimant or the evidence reasonably raises the possibility that the relevant disability causes or contributes to a claimant's unemployability). Therefore, the issue of entitlement to a TDIU is also before the Board. Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that she is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. In this regard, a remand is necessary for the Agency of Original Jurisdiction (AOJ) to issue a Supplemental Statement of the Case (SSOC), which considers additional and relevant VA records, VA examinations, and Social Security Administration (SSA) medical records added to the Veteran's claims file since issuance of the last SSOC in May 2019 and after the Veteran received notification that her appeal was returned to the Board in August 2019. The Board notes that the Veteran is entitled to an initial review of these records by the AOJ unless she waives such review. 38 C.F.R. §§ 19.37(b), 20.1304(c). As such, in September 2021, a notification letter was sent to the Veteran and her representative informing the Veteran that she had the option to waive AOJ review of the evidence and have the Board adjudicate her appeal. The notification letter also indicated that if the Veteran did not respond within 45 days of the letter that she wished to waive AOJ review of the evidence, the appeal would be remanded to the AOJ for initial consideration of the newly associated evidence. To date, the Veteran has not responded and, thus, the Board must remand the claim for the AOJ to issue a SSOC. Additionally, on remand the Board finds that the AOJ should obtain a VA addendum opinion regarding the Veteran's service connection claim for sleep apnea with fatigue to clarify any diagnoses associated with her claim and whether such are related to her active service and/or her service-connected spine disabilities. In this regard, the November 2014 and May 2019 VA sleep apnea negative nexus opinions appear to rely upon a lack of a diagnosis of sleep apnea in service and do not consider the Veteran's lay statements that she experienced sleep apnea symptoms in and since service. Additionally, in an August 2021 Brief, the Veteran's representative argued that there are numerous studies that suggest sleep apnea and back pain are commonly experienced together and that a VA examiner has not explored the relationship between these conditions, to include any co-symptoms. As such, the Board finds that a remand is also warranted for an addendum VA opinion that addresses the Veteran's lay statements and secondary service connection. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate medical professional to address the Veteran's claim for service connection for sleep apnea with fatigue. The Veteran's claims file, to include a copy of this Remand, should be made available to and be thoroughly reviewed by the VA examiner. The need for an examination is left to the discretion of the examiner. The examiner is asked to respond to the following: (a) Identify all diagnoses related to the Veteran's claim for sleep apnea with fatigue during the appeal period, regardless of whether the diagnosis is currently resolved and/or has resolved during the appeal period. The medical record reflects that she has been diagnosed with obstructive sleep apnea, chronic fatigue syndrome, and an October 2019 VA treatment record indicates that she perhaps needs to be evaluated for narcolepsy. (b) For each diagnosis provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that such had an onset in or is otherwise related to the Veteran's active service. (c) If the examiner finds that the Veteran's sleep apnea is not related to her active service, explain how that reconciles with the private medical opinion, received by VA in July 2020, noting that it is probable that the Veteran had obstructive sleep apnea since service. In providing the above direct service connection opinions, the VA examiner should address the Veteran's lay statements and buddy statements from individuals who served with her during service and from her spouse discussing observed in-service symptoms of fatigue, problems sleeping soundly through the night, issues with not breathing while sleeping, and loud snoring. The examiner should also consider and address as appropriate the service records noting fatigue, complaints of excessive daytime sleepiness, trouble sleeping because of pain, and that a sleep study for narcolepsy may be necessary given her severe excessive day time sleepiness. See 1999, March 2004 and November 2004 records. (d) For each diagnosis also provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that such was (1) caused by OR (2) aggravated by the Veteran's service-connected cervical and lumbar spine disabilities. The examiner should provide an opinion for BOTH causation and aggravation. If aggravation is found, the examiner should state whether there is a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described. A complete rationale should be provided for all opinions expressed. 2. After undertaking any further needed development, to include obtaining and associating with the record any further outstanding VA treatment records, readjudicate the issues of (1) entitlement to a rating in excess of 10 percent prior to November 3, 2016, and in excess of 10 percent from January 1, 2017, for degenerative disc disease of the lumbar spine status post discectomy and lumbar laminectomy; (2) entitlement to a rating in excess of 20 percent for degenerative disc disease of the cervical spine status post discectomy; (3) entitlement to service connection for sleep apnea with fatigue; and (4) entitlement to a TDIU. If the benefit sought remains denied, issue a SSOC and allow the Veteran and her representative an appropriate period of time to respond. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Amanda Purcell, Associate 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.