Citation Nr: 21027608 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 12-12 538 DATE: May 6, 2021 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected allergic rhinitis, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from February 1969 to April 1972, to include service in Vietnam. These matters come to the Board of Veterans' Appeals (Board) on appeal from January 2011 and April 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office in Louisville, Kentucky. The issues on appeal were previously before the Board in February 2015 and May 2018. In February 2015, the Board, in pertinent part, found that the matter of the Veteran's entitlement to a TDIU was part and parcel of his then-pending appeal pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), and remanded the matter for additional development. In May 2018, the Board remanded the case again. After taking further action, the AOJ confirmed and continued the prior denials and returned the case to the Board. 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected allergic rhinitis, is remanded. Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim and to afford him every possible consideration. In February 2019, an addendum VA medical opinion was obtained in connection with the Veteran's claim. In part, the examiner opined that it was less likely than not that the Veteran's sleep apnea was incurred in or caused by the claimed in-service injury, event, or illness, or aggravated by the claimed service-connected condition. In discussing the etiology of sleep apnea, the examiner stated, in part, that a partial upper airway obstruction, within the nasal passageways, may cause increased airflow resistance and cause snoring; however in the absence of issues that completely, or nearly completely, obstruct the nasal airway, such as large nasal polyps or a badly deviated septum, the nose would not be considered a causal factor to obstructive sleep apnea. The examiner noted that although the Veteran had a history of allergic rhinitis, it did not result in a significant nasal airway obstruction. Although the examiner provided a detailed explanation of the etiology of sleep apnea and how it relates to allergic rhinitis, evidence was received after the examiner's review that directly relates to the examiner's rationale. Specifically, private treatment records dated in September 2019 demonstrate that the Veteran had surgical intervention on his nasal passageway due to nasoseptal deviation and bilateral inferior turbinate hypertrophy. The objective findings included septal deviation both to the right and the left with large bone spurs along with large inferior turbinates contributing to greater than 80 percent obstruction. This evidence of a greater than 80 percent nasal obstruction directly relates to the examiner's rationale concerning an obstructed nasal airway. As such, a remand is necessary in order to obtain an addendum opinion that considers this evidence. 2. Entitlement to TDIU is remanded. The issue of the Veteran's entitlement to a TDIU was inextricably intertwined with the issue being remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). Accordingly, the TDIU issue will be remanded as well. These matters are REMANDED for the following action: 1. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issue on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his representative should be notified. 3. To the extent possible, make arrangements to provide the record on appeal to the VA examiner who previously offered opinions with respect to the etiology of the Veteran's sleep apnea in April 2017 and February 2019. The examiner should be asked to review the expanded record and prepare a supplemental report as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran's sleep apnea has been (a) caused or (b) aggravated (i.e., temporarily or permanently worsened beyond natural progression) by the Veteran's service-connected allergic rhinitis. In so doing, the examiner should discuss (rather than just note the presence of) the medical literature submitted by the Veteran (see Third Party Correspondence marked as received on March 29, 2013), as well as the private treatment records dated in September 2019 demonstrating that the Veteran had a greater than 80 percent nasal obstruction at that time. As part of the opinion, the examiner should address whether the Veteran's allergic rhinitis interferes with his use of a continuous positive airway pressure (CPAP) device and, if so, whether allergic rhinitis as a result causes or worsens the Veteran's sleep apnea beyond natural progression. If the examiner concludes that it is at least as likely as not that the Veteran's allergic rhinitis has caused a temporary aggravation of his sleep apnea, the examiner should, to the extent possible, identify the time frame(s) and extent of the aggravation. If the February 2019 examiner is no longer employed by VA or is otherwise unable to provide the opinion(s) requested, arrange to obtain the requested information from another qualified examiner. The need for another examination and/or telephonic or video interview of the Veteran is left to the discretion of the examiner(s) selected to offer the requested opinions. A complete rationale for all opinions expressed must be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Smith, 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.