Citation Nr: 21074458 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 17-05 132 DATE: December 15, 2021 REMANDED Entitlement to an increased initial rating for a lumbar spine disability, including entitlement to an earlier effective date for an increased rating, and currently rated as 10 percent disabling prior to August 27, 2020 and as 40 percent disabling thereafter, is remanded. Entitlement to an increased rating, including entitlement to an earlier effective date for the award of a separate rating, for right lower extremity radiculopathy, is remanded. Entitlement to an increased rating, including entitlement to an earlier effective date for the award of a separate rating, for left lower extremity radiculopathy, is remanded. Entitlement to an increased initial rating for a right shoulder disability, including entitlement to an earlier effective date for an increased rating, and currently rated as 10 percent disabling prior to August 27, 2020 and as 20 percent disabling thereafter, is remanded. Entitlement to service connection for obstructive sleep apnea, including as secondary to posttraumatic stress disorder and depression, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1982 to November 1995. This matter is before the Board of Veterans' Appeals (Board) on appeal of July 2015 and September 2020 rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). In December 2018, the Board remanded the claim for additional development. In January 2021, the Veteran testified at a hearing before the undersigned. Outstanding Records In December 2018, the Board remanded the Veteran's claims and directed the RO to associate outstanding VA treatment records, including records of an April 2016 sleep study completed at the Washington DC VAMC, with the claims file. Other evidence of record, including a September 2020 VA sleep apnea examination refers to an April 2014 sleep study completed at the Washington DC VAMC. A July 2015 rating decision and a December 2016 statement of the case (SCO) include "Treatment Reports from Washington VAMC (electronically reviewed), from February 10, 2014 through June 30, 2015" on the list of evidence considered. Currently, treatment records from the Washington DC VMAC, prior to June 2015 are not associated with the claims file. There are no records of a sleep study completed in April 2016 or April 2014 associated with the claims file. All outstanding VA treatment records, including the sleep study (from April 2014 or April 2016) must be obtained. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c); see also Stegall v. West, 11 Vet. App. 97 (2008). In addition, when there has been a determination regarding SSA benefits, the records concerning that decision must be obtained, if relevant. Tetro v. Gober, 14 Vet. App. 100, 108-09 (2000); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992). In cases where VA is uncertain as to the relevance of the records, VA should be guided by the principles underlying the pro-claimant VA system. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). The record indicates the Veteran may have filed a claim for disability benefits with the Social Security Administration (SSA). Medical records associated with that claim may be relevant to the issues now on appeal. A remand is required to obtain outstanding SSA records. 1. Entitlement to an increased initial rating for a lumbar spine disability, including entitlement to an earlier effective date for an increased rating, and currently rated as 10 percent disabling prior to August 27, 2020 and as 40 percent disabling thereafter, is remanded. During the January 2021 hearing, the Veteran's representative asserted the Veteran was experiencing frequent urination due to a neurological abnormality associated with his lumbar spine disability. Prior VA and private examinations did notindicate any neurological bladder symptoms. This assertion indicates the Veteran's lumbar spine disability may have worsened since the most recent VA examination was provided in September 2020. A new VA lumbar spine examination, which includes an evaluation of all associated neurological symptoms, must be provided. See Snuffer v. Gober, 10 Vet. App. 400 (1997). As noted above, outstanding SSA and VA treatment records must also be obtained. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 2. Entitlement to an increased rating, including entitlement to an earlier effective date for the award of a separate rating, for right lower extremity radiculopathy, is remanded. 3. Entitlement to an increased rating, including entitlement to an earlier effective date for the award of a separate rating, for left lower extremity radiculopathy, 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 Veteran's claim for an increased rating, including an earlier effective date, for radiculopathy of the lower left and lower right extremities is intertwined with the lumbar spine claim and, as noted above, outstanding SSA and VA treatment records must also be obtained. Id.; see also 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 4. Entitlement to an increased initial rating for a right shoulder disability, including entitlement to an earlier effective date for an increased rating and currently rated as 10 percent disabling prior to August 27 ,2020 and as 20 percent disabling thereafter, is remanded. As noted above, outstanding SSA and VA treatment records must be obtained. Id. 5. Entitlement to service connection for obstructive sleep apnea, including as secondary to posttraumatic stress disorder and depression, is remanded. The Veteran seeks entitlement to service connection for obstructive sleep apnea. He asserts the condition is secondary to his service connected acquired psychiatric disability (diagnosed as PTSD and depression.) He submitted medical literature entitled " How PTSD relates to Obstructive Sleep Apnea and CPAP Therapy" and private etiology opinions in support of his claim. During the January 2021 hearing, the Veteran's representative asserted service connection for sleep apnea is warranted based on obesity as an intermediate step between this condition and the Veteran's psychiatric and orthopedic disabilities. In an April 2016 letter, Dr. A. G.-C. opined the Veteran's sleep apnea condition was secondary to PTSD. No supporting rationale was provided for this opinion and it is inadequate to evaluate the claim. In August 2019, Dr. J. S. opined Veteran's sleep apnea was at least as likely as not caused or aggravated by his PTSD. In support of this opinion, Dr. Dr. J. S. discussed a medical study which documented 70 percent of combat veterans diagnosed with PTSD were also diagnosed with sleep apnea. However, no specific rationale explaining how PTSD caused sleep apnea in the Veteran was provided. Although this evidence shows a correlation between PTSD and sleep apnea, it does not show aggravation and there was no rationale for how the evidence relates to the specific facts of the Veteran's situation. The opinion as to causation and aggravation is inadequate to evaluate the claim. In September 2020, a VA examiner opined the Veteran's sleep apnea was less likely than not caused by his active service or secondary to PTSD. The examiner stated sleep apnea was more likely caused by obesity related to post service weight gain. He did not address whether obesity represented an intermediate step between sleep apnea and other service-connected disabilities. The examiner stated there was no objective evidence that the Veteran's PTSD had any effect on sleep apnea. He did not address the medical literature submitted by the Veteran or the April 2016 or August 2019 private medical opinions. This opinion is inadequate to evaluate the claim. As the medical evidence currently associated with the claims file is inadequate to evaluate the claim, an additional etiology opinion for sleep apnea must be obtained. Additionally, as noted above, outstanding SSA and VA treatment records (including an April 2016 or April 2014 sleep study) must also be obtained. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 6. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. In January 2021, the Veteran testified that he stopped working due to pain and limitations associated with his service connected back and right shoulder disabilities. Thus, unemployability has been raised by the record as an element of this appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The issue is intertwined with the claims discussed above. See Harris, supra. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records, including records of a sleep study conducted at the Washington DC VAMC in April 2016 or April 2014 and all records from the Washington DC VAMC earlier than June 2015. 2. Obtain the Veteran's records, including any underlying medical records, associated with any claim for disability benefits filed with the Social Security Administration. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lumbar spine and all related neurological disabilities, including bladder disabilities (claimed as frequent urination), and lower extremity radiculopathy. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's sleep apnea is at least as likely as not related to his active service. The clinician should also opine as to whether sleep apnea is: 1) proximately due to service-connected PTSD and depression or 2) whether service-connected PTSD and depression aggravate the Veteran's sleep apnea. In providing these opinions, the clinician must discuss the private etiology opinions of Dr. A. G.-C. and Dr J. S., all medical studies cited within these opinions, and all medical literature submitted by the Veteran. The opinion as to secondary service connection must address both causation and aggravation to be deemed adequate. The clinician must be advised aggravation means an increase in the severity of the underlying disability beyond its natural progression. If aggravation is found, the clinician should attempt to quantify the degree of additional disability resulting from the aggravation. The clinician must also provide an opinion as to whether or not the Veteran's service-connected PTSD and depression or other service-connected disabilities (including a back disability with bilateral radiculopathy and/or right shoulder disability) caused him to become obese or aggravated his obesity. If the examiner determines the Veteran's obesity is caused or aggravated by one or more service-connected disabilities, he or she must provide an opinion as to whether or not the obesity caused or aggravated by the service-connected disability was a substantial factor in causing sleep apnea. If the examiner determines both that obesity was caused or aggravated by a service-connected disability or disabilities and that sleep apnea was caused by the obesity, he or she must provide an opinion as to whether or not the claimed condition (sleep apnea) would not have occurred but for the obesity caused or aggravated by the service-connected disability or disabilities. The rationale for each opinion must go beyond generalized statements. There must be some discussion of the facts and the medical principles involved in the Veteran's specific case for the opinion to be deemed adequate. If the VA clinician determines that an additional examination is necessary to provide the requested opinions, schedule an examination. 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.