Citation Nr: 21010958 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 10-47 229 DATE: February 26, 2021 ORDER Referral of the claim for an increased rating for posttraumatic stress disorder (PTSD) prior to April 25, 2017 for extraschedular consideration is not warranted. Reopening of the claim for service connection for sleep apnea is granted; the appeal is granted to this extent only. Entitlement to service connection for sleep apnea, to include as secondary to PTSD, is denied. REMANDED Entitlement to a compensable rating for bilateral hearing loss is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to August 13, 2019, is remanded. FINDINGS OF FACT 1. The Veteran’s PTSD is not manifested by such an exceptional or unusual disability picture so as to render the schedular rating criteria governing psychiatric disabilities inadequate. 2. A July 2014 Board decision denied service connection for sleep apnea and the Veteran did not appeal the denial of that issue. 3. The evidence associated with the claims file subsequent to the July 2014 Board decision was not previously of record and relates to a previously unestablished fact necessary to substantiate the claim of service connection for sleep apnea. 4. The Veteran failed to report for an examination scheduled in conjunction with his reopened claim for service connection for sleep apnea without good cause. CONCLUSIONS OF LAW 1. The criteria for referral to the Director of Compensation Service for adjudication of an extraschedular rating for PTSD have not been met. 38 C.F.R. § 3.321(b); see Thun v. Peake, 22 Vet. App. 111 (2008), aff’d, 572 F.3d 1366 (Fed. Cir. 2009). 2. The July 2014 Board decision is final. 38 U.S.C. §§ 7105, 7266 (2012); 38 C.F.R. §§ 20.1100, 20.1000, 20.1001 (2014). 3. New and material evidence sufficient to reopen the claim of service connection for sleep apnea has been received. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). 4. The criteria for a grant of service connection for sleep apnea, to include as secondary to service-connected PTSD, have not been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310, 3.655. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1967 to May 1969. These matters come to the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in April 2010 and March 2017 by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2010, the RO granted service connection for PTSD, assigning a 30 percent rating, and denied reopening of the claim for service connection for sleep apnea. The Veteran perfected an appeal of the assigned rating and the denial of reopening to the Board, and in December 2011 the Board remanded the issue of entitlement to an increased rating for PTSD for additional development. The Board also determined that entitlement to a TDIU has been raised by the record and was part and parcel of the claim for an increased rating for PTSD, and remanded the issue as intertwined with the claim for an increased rating for PTSD. Rice v. Shinseki, 22 Vet. App. 447 (2009). Finally, the Board granted reopening of the claim for service connection for sleep apnea, and remanded the service connection claim for further development. In July 2014 the Board issued a decision granting an increased rating of 70 percent, but no higher, for PTSD throughout the period on appeal. The Board also denied entitlement to service connection for sleep apnea, and remanded the issue of entitlement to a TDIU. The Veteran appealed the Board’s denial of an increased rating for PTSD in excess of 70 percent to the United States Court of Appeals for Veterans Claims (Court). A May 2015 order of the Court implemented a Joint Motion for Partial Remand vacating and remanding that portion of the Board decision that denied an increased rating in excess of 70 percent for PTSD. The Joint Motion for Partial Remand specifically noted that on appeal to the Court the Veteran did not contest the denial of service connection for sleep apnea. 38 U.S.C. § 7266. The issue of entitlement to an increased rating in excess of 70 percent for PTSD was returned to the Board and the Board denied an increased rating in August 2015, including referral for extraschedular consideration. The Veteran again appealed to the Court, and a May 2016 Court order implemented a Joint Motion for Partial Remand vacating and remanding that portion of the August 2015 Board decision which denied referral for extraschedular consideration. The Joint Motion for Partial Remand specifically noted that the Veteran did not contest the denial of an increased schedular rating for PTSD, and therefore that portion of the Board’s decision was affirmed. Id. The issue of entitlement to an increased rating on an extraschedular basis was then returned to the Board. The issue of entitlement to a TDIU was also returned to the Board following completion of the development ordered in July 2014. In September 2016, the Board declined to refer the issue of entitlement to an increased rating for PTSD for extraschedular consideration. The Board also remanded the issue of entitlement to a TDIU for further development. The Veteran again appealed to the Court, and a March 2017 Court order implemented a Joint Motion for Partial Remand vacating and remanding the denial of referral for extraschedular consideration. While the increased rating claim was awaiting further adjudication by the Board, in a June 2017 rating decision the RO granted an increased rating of 100 percent for the Veteran’s PTSD, effective April 25, 2017. As this constitutes a full grant of the benefits sought from April 25, 2017 forward, the issue of entitlement to an increased rating for PTSD from April 25, 2017 forward, to include on an extraschedular basis, is no longer on appeal. Ab v. Brown, 6 Vet. App. 35 (1993). The issue has been modified to reflect the effective date of the 100 percent rating. In December 2017, the Board remanded the issue of entitlement to an increased rating for PTSD on an extraschedular basis and entitlement to a TDIU as intertwined with another issue on appeal. These issues were returned to the Board in March 2020 and docketed at the Board that same month. The Board notes that claims for service connection for bilateral upper and lower peripheral neuropathy were also on continuously on appeal since the April 2010 rating decision discussed above, and the Board most recently remanded those issues in December 2017. While on remand, in a February 2020 rating decision the RO granted service connection for bilateral upper and lower extremity peripheral neuropathy. As this constitutes a full grant of the benefits sought on appeal, and the issues were clearly addressed by the Board in all of the above remands from December 2011 to December 2017, those issues are no longer part of the appeal currently before the Board. Ab, 6 Vet. App. 35; see Bailey v. Wilkie, No. 19-2661, 2021 U.S. App. Vet. Claims LEXIS 13, *35–*38 (Jan. 6, 2021) (stating that the subsequent grant of an issue which was properly before the Board but not addressed does not cure the Board’s failure to adjudicate that issue). During the course of the above appeal, in February 2017 the Veteran submitted a claim for an increased rating for his bilateral hearing loss and to reopen his claim for service connection for sleep apnea. In a March 2017 rating decision, the RO denied an increased rating for hearing loss and service connection for sleep apnea. The Veteran then separately and properly perfected an appeal of those issues. Concerning the claim for service connection for sleep apnea, the Board notes that the RO did not address the question of whether reopening of the claim was warranted. However, in any case involving a finally denied claim the Board must address whether new and material evidence has been received to reopen before addressing the merits of the claim, regardless of whether or not the agency of original jurisdiction (AOJ) has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239–40 (1995). As such, the Board must address as an initial matter whether reopening of the claim for service connection for sleep apnea is warranted. Further, in light of the favorable decision as to the question of reopening herein, the Board deciding this issue in the first instance results in no prejudice to the Veteran. As to entitlement to a TDIU, the Board notes that the Veteran has been in receipt of a schedular 100 percent rating since April 25, 2017. However, the receipt of a combined 100 percent rating does not render the issue of entitlement to a TDIU moot where the award of a TDIU based on a single disability may result in the Veteran being eligible for SMC. Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2010). In this case, the Veteran is in receipt of SMC pursuant to 38 U.S.C. § 1114(s) from August 13, 2019 forward. As such, entitlement to a TDIU from August 13, 2019, forward is moot. However, as SMC has not been awarded prior to that date, entitlement to a TDIU is not moot prior to August 13, 2019, despite the Veteran being in receipt of a schedular 100 percent rating from April 25, 2017 to August 13, 2019. The issue of entitlement to a TDIU has been altered to reflect the date upon which the issue is moot. Based on the above, the current appeal consists of the following issues: (1) Entitlement to an increased rating for PTSD prior to April 25, 2017 on an extraschedular basis; (2) Entitlement to a compensable rating for bilateral hearing loss; (3) Whether new and material evidence has been submitted sufficient to reopen a claim for service connection for sleep apnea; (3) Entitlement to service connection for sleep apnea; and (4) Entitlement to a TDIU prior to August 13, 2019. The Board will address these issues below. Since the most recent AOJ adjudication of the issues on appeal, additional evidence has been associated with the file. In November 2020 correspondence, the Veteran’s representative stated that he wished to waive AOJ consideration of this evidence in the first instance. As such, the Board may properly consider such evidence at this time. 38 C.F.R. §§ 20.901, 20.1305(c). The Veteran testified at a hearing before a Veterans Law Judge (VLJ) in January 2011. A transcript of the hearing is of record. In June 2015 the Veteran was notified that the VLJ who presided over his hearing was no longer employed at the Board, and was offered the opportunity to request another hearing. That same month, the Veteran stated that he did not wish to have another hearing. Extraschedular Referral Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111, 115–16 (2008), aff’d, 572 F.3d 1366 (Fed. Cir. 2009). The first element requires a finding that the evidence “presents such an exceptional or unusual disability picture that the available schedular evaluations for that service-connected disability are inadequate.” See id. at 115. In order to determine whether a disability is “exceptional or unusual,” there “must be a comparison between the level of severity and symptomatology of the claimant’s service-connected disability with the established criteria found in the rating schedule for that disability.” Id. “[I]f the [rating] criteria reasonably describe the claimant’s disability level and symptomatology, then the claimant’s disability picture is contemplated by the rating schedule, [and] the assigned schedular evaluation is, therefore adequate, and no referral is required.” Id. The second element requires that there be evidence of other related factors, such as marked interference with employment or frequent periods of hospitalization. Id. If either the first or the second element is not met, referral for extraschedular consideration is not warranted. Chudy v. O’Rourke, 30 Vet. App. 34, 38–39 (2018). The first element is only satisfied when there is evidence of symptoms which are truly unusual or exceptional. Long v. Wilkie, No. 16-1537, 2020 U.S. App. Vet. Claims LEXIS 2371, *8–*9 (Dec. 30, 2020). The analysis of whether the first element for referral is met centers on the Veteran’s full symptomatology, and whether that symptomatology results in a level of disability so exceptional that the rating schedule is not capable of contemplating it. Id. Extraschedular consideration is simply not applicable to claims that are evaluated properly but ultimately denied under the schedular ratings; it applies only after conventional rating tools prove inadequate to evaluate a veteran’s symptomatology in the first place due to its exceptional nature. Id. In determining whether a Veteran’s disability picture is exceptional, and therefore whether the first element is met, several factors may be considered. Id. at *10. These include whether all schedular ratings options have been considered and deemed inadequate, whether the alleged symptoms or symptoms may be compensated under the rating schedule, and whether the alleged symptoms or manifestation may be attributed to the service-connected disability. Id. at *10–*15. The Board need only consider or discuss possible alternative ratings if they are raised by the claimant or reasonably raised by the record. Id. at *15. 1. Referral for Extraschedular Consideration In this case, the Veteran’s PTSD symptoms are contemplated by the rating schedule and referral for extraschedular consideration is not warranted. 38 C.F.R. § 3.321(b). The Veteran’s PTSD is rated under Diagnostic Code 9411. Diagnostic Codes 9201 through 9440 are rated using the General Rating Formula for Mental Disorders (General Formula). The General Formula, in turn, assigns ratings for psychiatric disabilities based on the overall level of social and occupational impairment resulting from the disability, based on the frequency, severity and duration of the Veteran’s psychiatric symptoms. 38 C.F.R. § 4.126; see Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). While the General Formula notes symptoms which may be associated with a given rating, these symptoms are not an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Instead, the listed symptoms provide guidance as to the severity of symptoms contemplated for each rating. Id. Ultimately, a psychiatric rating is assigned based on the overall level of occupational and social impairment resulting from the symptoms associated with the Veteran’s psychiatric disability. Bankhead, 29 Vet. App. at 22. As the General Formula assigns ratings based on the overall level of social and occupational impairment resulting from the Veteran’s displayed symptoms, whether listed or unlisted, it is unclear how the General Formula does not contemplate all of the Veteran’s displayed symptomatology. As ratings are assigned based on the social and occupational impairment resulting from documented symptoms, the criteria inherently consider all symptomatology displayed during the period on appeal. There is no evidence of other formally diagnosed and nonservice-connected psychiatric disabilities or physical manifestations which have been attributed to the Veteran’s PTSD. 38 C.F.R. § 4.125; see Long, No. 16-1537, at *10–*15. Further, there is no evidence that the General Formula’s system of rating based on social and occupational impairment is inadequate in this case, nor as discussed below has the Veteran or his attorney provided argument asserting it is inadequate. Long, No. 16-1537, at *10–*15. Ultimately, in this case the Veteran’s PTSD is evaluated properly under the General Formula and did not warrant a higher rating during the period prior to April 25, 2017. Therefore, this is not a case in which an extraschedular rating is warranted. Id. at *8–*9. The Veteran’s attorney has submitted appellate briefs in support of the claim for an increased rating for PTSD on an extraschedular basis. In a September 2017 appellate brief, the Veteran’s representative argued that entitlement to referral for extraschedular consideration was warranted, but did not discuss why. Instead the representative simply repeated that the Board had previously erred in a September 2016 decision by not remanding the question of referral for extraschedular consideration as intertwined with a claim for entitlement to TDIU, and then concluded that an extraschedular rating was warranted. However, this in no way establishes that the Veteran’s disability picture is so exceptional as to render the rating schedule inadequate, and therefore that referral is warranted in this case. The brief otherwise contained no argument or citations to evidence showing that the Veteran’s disability picture was so exceptional as to warrant referral, nor indeed any discussion or application of Thun or other case law governing extraschedular ratings. As the September 2017 brief in no way applied the law or regulations governing extraschedular referral to the facts of this case, the Board finds it unpersuasive. In their June 2020 appellate brief, the Veteran’s attorney argued that the Veteran was entitled to either an increased schedular rating for PTSD prior to April 25, 2017 or an earlier effective date for the award of the 100 percent schedular rating for PTSD, neither of which is an accurate recitation of the issue that is in fact currently on appeal. As noted, the question of entitlement to an increased schedular rating was finally denied in August 2015, with the only remaining issue being the question of referral for extraschedular consideration. The brief in no way discusses the question of extraschedular consideration or the Thun elements, or in any way explains how the Veteran’s overall disability picture is so exceptional that the General Formula is inadequate. Instead, it simply cites to the findings of April 2017 and January 2013 VA examiners, both of whom noted symptoms which were almost all directly contemplated by the rating criteria. As the June 2020 brief did not offer any argument that is actually applicable to the issue that is in fact currently on appeal, the Board finds it to be unpersuasive. Finally, the Board notes that a May 2016 Joint Motion for Partial Remand stated that the Board failed to consider the combined effects of certain disabilities in denying referral for an extraschedular rating for PTSD. See Johnson v. McDonald, 762 F.3d 1362, 1365 (Fed. Cir. 2014); Yancy v. McDonald, 27 Vet. App. 484, 496 (2016). However, the regulations governing extraschedular consideration were amended in January 2018 to bar the assignment of an extraschedular rating based on the combined effects of multiple service-connected disabilities. 82 Fed. Reg. 57,830 (Dec. 8, 2017) (eff. Jan. 8, 2018). This amendment applied to all claims pending before VA, the Court, or the Federal Circuit on that date, and therefore the prohibition contained in the January 2018 amendment applies in this case. Id.; see Thurlow, 30 Vet. App. at 237–40 (finding that there was no impermissible retroactive effect in applying the amendment to a pending appeal before the Court). As such, in denying referral of the current claim the Board need not consider the combined effects of the Veteran’s service-connected disabilities. In denying referral for extraschedular consideration, the Board further notes that the issue of entitlement to a TDIU is being remanded herein. However, the issue is being remanded solely based on the fact that it is intertwined with the claim for an increased rating for bilateral hearing loss, and is not being remanded for development. Thurlow v. Wilkie, 30 Vet. App. 231 (2018). In turn, the hearing loss claim is solely being remanded so that a new VA examination can be obtained to determine the current severity of the Veteran’s hearing loss. As no development is being ordered with respect to the issue of entitlement to a TDIU, and the development ordered for the bilateral hearing loss claim has no reasonable possibility of substantiating the claim for an increased rating for PTSD on an extraschedular basis, the Board finds there is no prejudice in denying referral for extraschedular consideration for PTSD herein. Id. Based on the foregoing, the preponderance of the evidence is against a finding that the Veteran’s disability picture is so unusual or exceptional that is renders the rating criteria for psychiatric disabilities inadequate. 38 C.F.R. § 3.321(b); see Thun v. Peake, 22 Vet. App. 111, 115–16; Long, No. 16-1537, at *10–*15. There is no evidence that the General Formula for Rating Psychiatric Disabilities, which is based on the overall level of occupational and social impairment resulting from the Veteran’s displayed symptoms, does not adequately contemplated his disability picture. Further, none of the evidence establishes that there are other diagnosed psychiatric or physical disabilities which may be attributed to the Veteran’s PTSD. Neither the Veteran nor his representative have provided evidence showing how the rating schedule is inadequate or how his disability picture is exceptional in nature. As the first Thun element is not met, the Board need not address the second. Chudy, 30 Vet. App. at 38–39. For these reasons, referral of the claim for an increased rating for PTSD prior to April 25, 2017, for extraschedular consideration is denied. 38 C.F.R. § 3.321(b). New and Material Evidence Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. New and material evidence received prior to the expiration of the appeal period following a decision, will be considered as having been filled in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). The definitions of the terms “new” and “material” for the purposes of this provision are the same as those discussed above. Voracek v. Nicholson, 421 F.3d 1299, 1304 (Fed. Cir. 2005). If evidence received during the appellate period following a decision is new and material, the claim will remain pending until VA issues another decision re-adjudicating the claim and addressing the new and material evidence. Bond v. Shinseki, 659 F.3d 1362, 1367–68 (Fed. Cir. 2011). New and material evidence is not required to reopen a claim when, at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim. 38 C.F.R. § 3.156(c). “Relevant” means service records that speak to a matter in issue or in dispute. Kisor v. Wilkie, 969 F.3d 1333, 1341–43 (Fed. Cir. 2020). In other words, to be relevant the new service department records must pertain to the basis of the prior final denial. Id. For the purposes of reopening a claim, newly submitted evidence is generally presumed to be credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim in order to reopen. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Id. at 117–18. 2. Reopening of service connection for sleep apnea. The Board last denied entitlement to service connection for sleep apnea in July 2014. The Veteran appealed the July 2014 decision to the Court, but as noted in a May 2015 Joint Motion for Partial Remand the Veteran did not contest the denial of service connection sleep apnea, and the Court order noted that the remaining issues not being remanded pursuant to the terms of the Joint Motion for Partial Remand were dismissed. 38 U.S.C. § 7252. As such, the Board denial of service connection for sleep apnea is final. 38 C.F.R. § 20.1100. While the Joint Motion for Partial Remand specifically noted that the Board’s denial of service connection for sleep apnea be affirmed, the Court order itself stated that all issues not being remanded pursuant to the Joint Motion for Partial Remand were dismissed. However, even if the order were to be read as affirming the Board decision, as that was what was requested in the Joint Motion for Partial Remand, this would only have the effect of making the May 2015 order the prior final denial, as the Veteran did not appeal that decision. 38 U.S.C. §§ 7291, 7292. Thus, even if the May 2015 order in fact affirmed the Board’s denial, the claim for service connection for sleep apnea was still previously and finally denied. The Board notes that in support of his current claim the Veteran is now arguing that his sleep apnea is secondary to his PTSD. However, the assertion of a new theory of causation cannot be the basis for a new claim for benefits; instead, the factual basis of a claim is the diagnosed disease or injury. Boggs v. Peake, 520 F.3d 1330, 133437 (Fed. Cir. 2008). Since the underlying disease in this claim is the same as the one denied in July 2014, the allegation of a new theory of entitlement does not vitiate the need for new and material evidence. Id. Therefore, new and material evidence is required to reopen the claim. The evidence of record in July 2014 consisted of the Veteran’s lay statements, service treatment records, VA and private treatment records, and VA examination reports. The evidence of record failed to show that the diagnosed sleep apnea was causally related to the Veteran’s period of service. Evidence received since the rating decision includes additional treatment records and examination reports, lay statements from the Veteran, and treatise evidence. Of particular note, an article submitted by the Veteran in June 2020 indicates that there may be a correlation between PTSD and the development of sleep apnea. The evidence is competent, and presumed credible for the purposes of reopening. Justus, 3 Vet. App. at 513. The evidence provided by the Veteran is new as it was not previously submitted to agency decision makers and is material as it addresses a previously unestablished fact. It is not redundant and raises a reasonable possibility of substantiating the claim. Therefore, reopening of the claim for service connection for sleep apnea is warranted. 38 C.F.R. § 3.156(a). Service Connection Generally, to establish service connection a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). When entitlement to a benefit cannot be established without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination or reexamination, an original claim for compensation is to be decided based on the evidence of record. 38 C.F.R. § 3.655(b). When a claimant fails to report for an examination scheduled in conjunction with a reopened claim for a benefit which was previously disallowed, the claim shall be denied. Id. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, or death of an immediate family member. 38 C.F.R. § 3.655(a). In other words, in cases where a Veteran fails to appear without good cause for a necessary VA examination the regulation creates two categories of claims. Turk v. Peake, 21 Vet. App. 565, 569–70 (2008). The first is original claims, which must be decided based on the evidence of record despite the failure to appear for the scheduled examination. Id. The second is comprised of other original claims, reopened claims for previously denied benefits and claims for increase, which are to be summarily denied based on the failure to appear. Id. 3. Service connection for sleep apnea In this case, as discussed above the claim for service connection for sleep apnea was previously denied in a July 2014 Board decision. While the Veteran appealed that decision to the Court, as discussed earlier he did not contest the denial of service connection for sleep apnea and therefore the July 2014 denial of that issue became final. 38 C.F.R. § 20.1100. As such, the claim for service connection for sleep apnea is a claim for benefits which was previously denied. 38 C.F.R. § 20.1100. The Veteran filed a claim to reopen service connection for sleep apnea in February 2017. The Veteran was scheduled for an examination concerning the claimed sleep apnea in March 2017, but the examiner noted that the Veteran failed to appear. The scheduled examination was necessary not only to confirm the nature of the claimed disability but also to obtain the Veteran’s account of the disability, including its symptoms, onset and aggravating factors, all of which are necessary in order to obtain an informed and adequate medical opinion concerning the etiology of the disability. Turk, 21 Vet. App. at 569–70; see, e.g., Dalton v. Peake, 21 Vet. App. 23 (2007). To date neither the Veteran nor his representative have provided good cause the failure to appear for the examination, despite being notified that the Veteran had failed to appear for the scheduled examination in the statement of the case. 38 C.F.R. § 3.655(a). In light of the foregoing, the Board finds that the Veteran was scheduled for a February 2017 examination in conjunction with the previously disallowed claim for service connection for sleep apnea. Further, the examination was necessary in order to obtain the Veteran’s account of the disability, including its symptoms, onset date and aggravating factors, so that an adequate etiological opinion could be rendered. Turk, 21 Vet. App. at 569–70; see, e.g., Dalton, 21 Vet. App. 23. The Veteran failed to appear for the examination, and neither the Veteran nor his attorney have provided good cause for doing so. As such, the Veteran’s claim for service connection for sleep apnea must be denied as a matter of law. 38 C.F.R. § 3.655(b); see Turk, 21 Vet. App. at 569–70. REASONS FOR REMAND 1. Entitlement to a compensable rating for bilateral hearing loss. The Veteran underwent a VA hearing loss examination in February 2017. However, the examiner found that the testing was unreliable. She remarked that the Veteran was all over the board during pure tone testing and not giving consistent responses. She also expressed that he was sleepy or groggy and was unable to repeat the words back consistently. The examiner recommended that the be seen on another day for more reliable results. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A such the Board finds the February 2017 inadequate for rating purposes and that the issue should be remanded for a new VA hearing loss examination. 2. Entitlement to a TDIU. As a decision on the bilateral hearing loss issue could significantly impact a decision on the issue of TDIU, the issues are inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Therefore, the claim for a TDIU must be remanded. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA audiology examination. The examiner should identify the nature, frequency, and severity of the Veteran's hearing loss. The examiner must report on the functional effects of the Veteran's hearing loss on his occupational and social functioning. All testing deemed necessary should be performed, and the results reported in detail, to include all pure tone thresholds, pure tone threshold averages, and Maryland CNC tests. A complete rationale for all opinions expressed should be provided. If the examiner is unable to obtain threshold scores through audiological testing, he or she must provide a thorough explanation as to why these scores cannot be obtained. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of TDIU. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. CHRISTOPHER A. WENDELL Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Quinn, 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.