Veteranclaims’s Blog

November 26, 2021

Single Judge Application; PTSD and Sleep Apnea; address whether the veteran’s sleep difficulties have a common origin or whether medical consideration of any association between the veteran’s PTSD and sleep apnea disability; Compare Foster v. McDonough, No. 19-6371, 2021 WL 1230492, at *4 (Vet. App. Apr. 2, 2021) (mem. dec.) (remanding because the Board conflated the elements of an in-service event and nexus and the issue of direct or secondary service connection for sleep apnea and did not explain how there was sufficient medical evidence to decide the claim); Adams v. Wilkie, No. 18-1625, 2019 WL 903888, at *2 (Vet. App. Feb. 25, 2019) (mem. dec.) (remanding because an examiner’s opinion that PTSD “does not cause the anatomical or physiological changes associated with sleep apnea” ignored a private physician’s suggestion that there could be a correlation between PTSD and sleep apnea through weight gain); Royster v. Wilkie, No. 19-6867, 2020 WL 7689222, at *4 (Vet. App. Dec. 28, 2020) (mem. dec.) (remanding for the Board to adequately explain why a medical article suggesting that patients with psychiatric disorders and symptoms of sleep-disordered breathing should be evaluated for sleep apnea did not meet the low threshold to trigger a new VA examination);

Filed under: Uncategorized — veteranclaims @ 2:30 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-3713
SAMUEL WASHINGTON, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before JAQUITH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
JAQUITH, Judge: U.S. Army veteran Samuel Washington appeals a March 31, 2020, Board of Veterans’ Appeals (Board) decision denying service connection for sleep apnea and a total disability rating based on individual unemployability (TDIU).1 Regarding the veteran’s sleep apnea claim, the Board did not provide adequate reasons or bases for discounting lay statements regarding sleep apnea symptoms or for discounting a private medical opinion supporting service connection. It also failed to ensure VA met its duty to assist the veteran in obtaining a VA medical examination. Regarding the veteran’s TDIU claim, the parties agree that remand is warranted because the Board rejected a favorable private vocational assessment upon its determination that the examiner didn’t actually assess the veteran—but there is evidence that the examiner did —and because the Board failed to discuss whether the combined effects of the veteran’s service-connected conditions warranted a TDIU rating. For these reasons, the Court vacates the Board’s decision and remands the case.
1 The veteran, through counsel, expressly stated that he is not appealing the Board’s denials of service connection for hypertension or a left hip disorder. Appellant’s Brief (Br.) at 2. Therefore, the veteran has abandoned his appeal of those matters, and the Court will dismiss the appeal as to those claims. See Pederson v. McDonald, 27 Vet.App. 276, 285 (2015) (en banc).
2
I. BACKGROUND
The veteran served on active duty from November 1967 to May 1971, including 19 days in Vietnam in 1968, and from June 1971 to January 1985. R. at 977, 1617, 1618. In December 2012, he submitted a statement asserting that he suffered from nightmares and sleep difficulties. R. at 2799. That same month, VA granted service connection for post-traumatic stress disorder (PTSD)—noted as “also claimed as nightmares”—but denied entitlement to service connection for “sleep problems.” R. at 2426-37. The rating decision on the veteran’s PTSD specifically cited his “chronic sleep impairment.” R. at 2434.
In February 2013, the veteran again submitted a statement asserting that he suffered from sleep difficulties and nightmares as a result of his service in Vietnam. R. at 2358. In September 2014, based on a sleep study, a private physician diagnosed the veteran with obstructive sleep apnea.2 R. at 15. A private medical opinion from October 2014 opined that the veteran’s sleep apnea was “due to (100%)” service. R. at 2307. The private examiner noted that
The patient reports loud snoring and witnessed apnea documented by fellow soldiers while serving on active duty in the Army. He also experienced excessive daytime sleepiness and nonrestorative sleep during this time. It is my medical opinion that the patient had untreated obstructive sleep apnea while serving on active duty in the Army.
R. at 2307.
In October 2014, the veteran filed a claim seeking service connection for sleep difficulty. R. at 2295-98. This claim was denied in December 2014, and the veteran filed a Notice of Disagreement later that month. R. at 2272-84, 2044.
In July 2015, the veteran submitted a statement from retired First Sergeant Lights, who observed the veteran’s sleep problems while they lived together in Mr. Lights’s home during service. R. at 2036-37. He described that
2 Sleep apnea is evaluated under Diagnostic Code 6847 of 38 CFR § 4.97 (2021), which covers obstructive, central, and mixed sleep apnea syndromes and provides for the following disability ratings:
Chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requires tracheostomy
100
Requires use of breathing assistance device such as continuous airway pressure (CPAP) machine
50
Persistent day-time hypersomnolence
30
Asymptomatic but with documented sleep disorder breathing
0
3
I immediately noticed after he settled in the home that Sergeant Washington was having sleeping problems. There were times he would get up in the middle of the night and walk around in the yard. I became very concerned and noticed what I believe to be him “sleepwalking.” I would cautiously approach him and call his name. He would then wake up and be disoriented. He told me not to worry about it that sometimes he would wake up in his sleep and think that he was still in Vietnam. At other times, he would be snoring hard and wake up screaming in his sleep. I would slowly approach him again and he would say he was having bad dreams about being in Vietnam.
R. at 2036.
The veteran filed a formal TDIU application in April 2016. R. at 1551-52. In a May 2016 VA medical examination for PTSD, the examiner opined that the veteran’s PTSD had “some impact on his ability to function in an occupational environment,” but he had been able to work in the past until a workplace electrocution. R. at 1470. The examiner further opined that the veteran’s “fear of electricity seem[ed] to play a much greater role than his PTSD in limit[ing] his capacity to work, particularly considering he worked as an electrician.” Id. The TDIU claim was denied in an August 2016 rating decision, and the veteran filed a Notice of Disagreement in February 2017. R. at 979-87, 953-54.
VA provided another medical examination for PTSD in October 2018. R. at 522-28. The examiner found that, regarding functioning in an occupational environment, the veteran’s “irritability and his depressed mood disrupt his interactions with others, and these symptoms impair his ability to work cooperatively and effectively with coworkers, supervisors, and the public to a mild extent.” Id. at 527. The examiner also noted that “[i]ntrusive thoughts, hypervigilance, and hyperarousal interfere with his attention, concentration, memory, and problem solving, and these symptoms impair his ability to understand and follow instructions, to retain new information, to communicate effectively in writing, and to solve technical or mechanical problems to a mild extent.” Id. at 527-28.
In March 2019, the veteran was assessed by a private vocational expert who opined that it was more likely than not that the veteran “has been unable to secure and follow any substantially gainful employment since at least 2011, due to his service-connected disabilities.” R. at 503.
VA again denied the appellant’s claim for TDIU in an October 2019 Statement of the Case (SOC). R. at 245-46. And another SOC on the same date continued the denial of his claim for
4
entitlement to service connection for sleep apnea. R. at 138. The veteran appealed to the Board in October 2019. R. at 39-40.
The Board found that it had received new and material evidence and reopened the veteran’s sleep apnea claim. R. at 10. And the Board found that the existence of a present sleep apnea disability had been established. R. at 18. However, the Board denied service connection for sleep apnea because it found that there was no in-service occurrence linked to his current sleep apnea diagnosis. R. at 18.3 In making this determination, the Board considered that the veteran’s service treatment records were silent for complaints of sleep apnea. R. at 18. The Board assigned Mr. Lights’s July 2015 statement “low weight” because he associated the veteran’s snoring and nightmares to dreams about Vietnam. R. at 18. The Board reasoned that
[h]e is competent to report his observances but is not competent to find that they constitute an onset of [sleep apnea]. Standing alone, the statement is not sufficient to indicate the onset of a chronic disease sufficient to warrant a VA examination. As a lay person, he is not competent to render complex medical etiological opinions.
R. at 18. Further, the Board discussed the October 2014 opinion by the private examiner, namely, the examiner’s rationale that acknowledged the veteran’s reports that other soldiers documented the veteran’s loud snoring and apneas in service, and the veteran’s own report that he had excessive daytime sleepiness. R. at 15. It assigned the private opinion low probative weight because it found that “there is absolutely no indication that [the examiner] reviewed the claims file or conducted any clinical analysis. Stated another way, this is wholly based upon the subjective contentions of the [v]eteran, who, as a layperson, lacks the medical training to render a complex, etiological opinion.” R. at 15 (emphasis in original).
The Board also decided that a medical opinion for sleep apnea was not warranted because there was no credible evidence to establish that the veteran suffered an event, injury, or disease in service. R. at 18-19. The Board noted that “[a]dditionally, conclusory generalized lay statements concerning ‘destroyed’ medical records, parachute injury, and snoring are insufficient predicates to require the Secretary to provide an examination,” and the Board determined that the record was
3 A service-connected condition is a disability that was incurred or aggravated in the line of active duty. 38 U.S.C. § 101(16). Establishing direct service connection generally requires medical, or sometimes lay, evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the claimed in-service disease or injury and the current disability. Marcelino v. Shulkin, 29 Vet.App. 155, 157 (2018); 38 C.F.R. § 3.303(a) (2020). The Board found that the first element of service connection was met, but the other two were lacking. R at 18.
5
“bereft of competent medical suggestions” to support the veteran’s belief that his sleep apnea was connected to service. R. at 19.
The Board also denied entitlement to TDIU because “there is no competent evidence of record that states that Veteran’s service-connected disabilities preclude substantially gainful employment in light of the Veteran’s actual or specific education and occupational history.” R. at 23. It assigned what it considered the only piece of evidence, the March 2019 vocational opinion, low probative weight because there was no indication that the examiner actually interviewed the veteran. R. at 22. This appeal followed.
II. ANALYSIS
A. Sleep Apnea Claim

  1. The Board’s Failure to Provide Adequate Reasons or Bases for Discounting Favorable Evidence
    The veteran first argues that the Board failed to provide adequate reasons or bases for assigning low probative value to lay evidence that documented his symptomatology. Specifically, he alleges that the Board erroneously considered Mr. Lights’s July 2015 statement to be incompetent evidence of etiology rather than viewing it as a report of his observation of the veteran’s symptoms. Appellant’s Br. at 7-8. The Secretary maintains that there was no error with the Board’s assignment of low probative weight because lay people are not competent to opine on the etiology of conditions.
    The Board’s assessment of the credibility and weight to be given to evidence is a finding of fact that the Court reviews under the “clearly erroneous” standard of review. 38 U.S.C. § 7261(a)(4); Wood v. Derwinski, 1 Vet.App. 190, 193 (1991). In assessing the evidence, the Board is required to provide a statement of reasons or bases that enables the claimant to understand the precise basis for its determinations and facilitates judicial review. Miller v. Wilkie, 32 Vet.App. 249, 261-62 (2020). As part of this requirement, the Board must account for the probative value and persuasiveness of the evidence, and it must explain why it rejected relevant evidence that is favorable to the claimant. Id. This includes lay evidence. 38 U.S.C. § 1154(a). In general, a layperson is not capable to opine on matters requiring medical knowledge. Routen v. Brown, 10 Vet.App. 183, 186 (1997). However, in certain circumstances, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir.
    6
    2009). The probative value of lay evidence depends on both competency and credibility. See Layno v. Brown, 6 Vet.App. 465, 469 (1994).
    The Board is not permitted to find lay statements not credible merely because they are not corroborated by contemporaneous medical records. Frost v. Shulkin, 29 Vet.App. 131, 141 (2017). By statute and regulation, lay evidence must be considered in determining service connection and may be competent to prove the existence of a disability without confirmatory medical records. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The Federal Circuit has “stresse[d] … that lay evidence may be sufficient to establish a diagnosis of a medical condition,” and thus that a categorical rejection of lay evidence submitted for that purpose constitutes error. King v. Shinseki, 700 F.3d 1339, 1344 (Fed. Cir. 2012). Particularly pertinent here, lay statements are competent “to establish the presence of observable symptomatology and ‘may provide sufficient support for a claim of service connection.'” Barr v. Nicholson, 21 Vet.App. 303, 307 (2007) (quoting Layno, 6 Vet.App. at 469).
    The Board’s statement of reasons or bases leaves unclear whether it faithfully applied these principles. The Board contrasted the lay statements by the veteran and Mr. Lights with the absence of a reference to sleep apnea in the veteran’s service treatment records. R. at 18. And it assigned the lay statement from Mr. Lights low probative weight because lay people are not competent to opine on etiology of sleep apnea, but there was no opinion on etiology contained in his statement. The Board also assigned Mr. Lights’s statement low weight because “he associated the symptoms with dreams about Vietnam.”4 R. at 18. But Mr. Lights merely relayed the symptoms he observed: the veteran getting up in the middle of the night, sleepwalking, snoring, and waking up screaming. R. at 2036. Mr. Lights also mentioned that the veteran said he was having dreams about Vietnam. The veteran’s report of his dream content during sleep disturbances is not a medical determination but a report of his own experiences. Nor are Mr. Lights’s observations of the veteran’s symptoms a medical determination.
    The Board likewise says only of the veteran’s statements to his private physician (describing his in-service loud snoring, excessive daytime sleepiness, and nonrestorative sleep, R. at 2307), that the veteran, “as a layperson lacks the medical training to render a complex etiological opinion.” R. at 15-16. But these are reports of observable symptoms, not complex etiological
    4 It is unclear who the Board is referring to when it says Mr. Lights’s statement is not probative because “he associated the symptoms with dreams about Vietnam”—Mr. Lights or the veteran. R. at 18 (emphasis added).
    7
    opinions. And the Board does not even mention the veteran’s statement that his sleep difficulty when he came back from Vietnam included snoring “real hard” and breathing “right,” which he didn’t learn was called sleep apnea until later. R. at 2285. It is well-settled that a lay person is competent to report his own experiences and observations. Washington v. Nicholson, 19 Vet.App. 362, 368 (2005) (holding that a lay person is competent to provide lay evidence on those matters within his or her personal knowledge and experience). The Board’s explanation for assigning low weight to the favorable lay evidence is inadequate and does not facilitate judicial review. See Miller, 32 Vet.App. at 261-62.
    Second, the veteran argues that Board erred in rejecting the October 2014 private medical opinion by improperly disregarding it because it was based on the veteran’s account of his symptoms. Appellant’s Br. at 8-10. The Secretary argues that the Board properly discounted the opinion based on the Board’s determination that the examiner didn’t review the claims file or conduct any clinical analysis. Secretary’s Br. at 9-10.
    The Board may reject a medical opinion that is based on facts provided by the veteran previously found to be inaccurate. Reonal v. Brown, 5 Vet.App. 458, 460-61 (1993). But “the Board may not disregard a medical opinion solely on the rationale that the medical opinion was based on a history given by the veteran.” Kowalski v. Nicholson, 19 Vet.App. 171, 179 (2005). In this case, the Board did not find the facts provided by the veteran and another noncommissioned officer to be inaccurate, just not competent evidence of etiology. The Board did not question the private physician’s competence to render a medical opinion. Under the circumstances, “[e]ither the medical report was improvidently rejected (because [the veteran’s] statements were credible) or the Board failed to provide an adequate statement of reasons or bases with regard to any unstated finding that [the veteran’s] statements were not credible.” Coburn v. Nicholson, 19 Vet.App. 427, 432-33 (2006).
    The Board also assigned diminished probative weight to the private examiner’s opinion because there was no indication that the examiner reviewed the claims file or conducted any clinical analysis. R. at 15-16. But “the claims file is not a magical or talismanic set of documents,” it is a tool to help examiners become familiar with the facts necessary to form an expert opinion. Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 303 (2008). There are other ways for a private physician to gain that familiarity, including by getting an accurate medical history from the veteran. Id. So “a private medical opinion may not be discounted solely because the opining
    8
    physician did not review the claims file.” Id. at 304. And the Board’s mere statement that a private physician did not review the veteran’s claims file
    is of little use in providing adequate reasons or bases for a decision where the Board fails to explain what information in the claims file was important and necessary for a competent and persuasive medical opinion, and why the absence of record review detracts from the probative value of the opinion of a physician.
    Id. at 303. In this case, the Board did not address the private physician’s statement that he had “become familiar with [the veteran’s] current medical condition as well as his [] past medical history.” R. at 2307. And the Board did not otherwise point out any facts from the veteran’s claims file that the private physician missed “and explain why they were necessary or important in forming the appropriate medical judgment.” Nieves-Rodriguez, 22 Vet.App. at 303.
  2. The Board’s Failure to Ensure that VA Met Its Duty to Assist the Veteran
    The veteran also argues that the Board erred in its determination that a medical examination was not warranted. He alleges that the Board improperly imposed a higher standard than called for under McLendon, v. Nicholson, 20 Vet.App. 79, 81 (2006) by requiring that there be evidence from an individual competent to render an opinion on etiology. Appellant’s Br. at 10-13. The Secretary disagrees, explaining that since the Board found the only favorable evidence of an in-service occurrence to not be credible, it was correct to not count that evidence toward fulfillment of the McLendon factors. Secretary’s Br. at 10-11.
    VA must “make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim for a benefit,” including “providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim.” 38 U.S.C. § 5103A(a)(1), (d)(1); see Loving v. Nicholson, 19 Vet.App. 96, 102 (2005). The Secretary’s duty to assist requires that he provide a VA medical examination to a claimant when the record, including all information provided on behalf of the claimant,
    (A) contains competent evidence of a current disability or persistent or recurrent symptoms of a disability; and (B) indicates that the disability or symptoms may be associated with the claimant’s active military . . . service ; but (C) does not contain sufficient medical evidence for the Secretary to make a decision on the claim.
    38 U.S.C. § 5103A(d)(2); McLendon, 20 Vet.App. at 81.
    “The Board’s ultimate conclusion that a medical examination is not necessary pursuant to 38 U.S.C. § 5103A(d)(2) is reviewed under the ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law’ standard of review.” McLendon, 20 Vet.App. at 81 (citing
    9
    38 U.S.C. § 7261(a)(3)(A)). However, because each subsection of 38 U.S.C. § 5103A(d)(2) sets forth a different evidentiary standard, the Board’s determinations as to each conclusion are reviewed by this Court “using a standard that is multifaceted.” McLendon, 20 Vet.App. at 81; see Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010).
    In determining whether the Secretary must provide a claimant with a medical examination, the first element to be considered, evidence of a current disability, requires that the evidence be “competent.” 38 U.S.C. § 5103A(d)(2)(A). This “threshold” determination does not require the Board to weigh competing facts, but merely to assess (1) whether evidence exists, and (2) whether that evidence is competent. McLendon, 20 Vet.App. at 81-82. This determination is reviewed by the Court under the “clearly erroneous” standard of review. Id. An element added by 38 C.F.R. § 3.159(c)(4)(i)(B) (2021) requires evidence establishing that the claimant suffered an in-service event, injury, or disease. “This is a classic factual assessment, involving the weighing of facts, and the Board’s findings are subject to the ‘clearly erroneous’ standard of review.” McLendon, 20 Vet.App. at 82. The nexus element requires consideration of whether the evidence of record “indicates” that the current disability “may be associated with the claimant’s . . . service.” 38 U.S.C. § 5103A(d)(2)(B). “[T]his element requires only that the evidence ‘indicates’ that there ‘may’ be a nexus between the two,” and that “is a low threshold.” McLendon, 20 Vet.App. at 83. Although this is a low threshold, a claimant’s “conclusory generalized statement” that his or her current condition is related to service alone is insufficient to satisfy this requirement. Waters, 601 F.3d at 1278. The Board’s determination whether the evidence indicates that a current disability may be associated with the claimant’s service is reviewed under the “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” standard of review. McLendon, 20 Vet.App. at 83. Finally, the Board must determine whether there is “sufficient medical evidence on file for the Secretary to make a decision on the claim.” 38 U.S.C. § 5103A(d)(2)(C). Sufficiency of evidence is generally a question of fact reviewed by this Court under the “clearly erroneous” standard of review. McLendon, 20 Vet.App. at 85 (citing 38 U.S.C. § 7261(a)(4)).
    Here, the Board determined that a VA examination was not warranted because “the record is bereft of competent medical suggestions to support the [v]eteran’s belief[]” that the origin of his “sleep apnea is rooted to active duty service.” R. at 19. But the Board applied the wrong standard. See Waters, 601 F.3d at 1277. Lay evidence must be considered and may be sufficient to support a later diagnosis by a doctor. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Circ. 2007); 38
    10
    U.S.C. § 5103A(d)(2) (requiring the Secretary to determine whether an examination is necessary by “taking into consideration all information and lay or medical evidence (including statements of the claimant).” Moreover, the Board’s finding that the veteran wasn’t competent to render a medical opinion on etiology is not a license to discard his alleged symptoms. If there is “an indication that the disability . . . may be associated with the veteran’s service” and “insufficient competent medical evidence on file for the Secretary to make a decision on the claim,” the remedy, McLendon teaches, is to get a competent medical opinion. 20 Vet.App. at 81.
    The situation is further complicated here because there is more than the veteran’s assertion that his sleep apnea originated in service and his fellow soldiers’ observations regarding the veteran’s loud snoring. The veteran’s claim of service-connected sleep difficulties has been accepted by medical examiners and VA, characterized as “chronic sleep impairment,” listed as a symptom of the veteran’s service-connected PTSD, and cited in support of his disability rating. See R. at 527, 965, 981, 1468. Yet the Board does no more than assign low weight to Mr. Lights’s report of loud snoring because “he associated the symptoms with dreams about Vietnam.” R. at 18. This may be a hint that the Board considers the veteran’s chronic sleep impairment and his sleep apnea to be separate, but it does not actually address that issue, or address whether the veteran’s sleep difficulties have a common origin or whether medical consideration of any association between the veteran’s PTSD and sleep apnea disability is called for. Compare Foster v. McDonough, No. 19-6371, 2021 WL 1230492, at *4 (Vet. App. Apr. 2, 2021) (mem. dec.) (remanding because the Board conflated the elements of an in-service event and nexus and the issue of direct or secondary service connection for sleep apnea and did not explain how there was sufficient medical evidence to decide the claim), and Adams v. Wilkie, No. 18-1625, 2019 WL 903888, at *2 (Vet. App. Feb. 25, 2019) (mem. dec.) (remanding because an examiner’s opinion that PTSD “does not cause the anatomical or physiological changes associated with sleep apnea” ignored a private physician’s suggestion that there could be a correlation between PTSD and sleep apnea through weight gain), with Royster v. Wilkie, No. 19-6867, 2020 WL 7689222, at *4 (Vet. App. Dec. 28, 2020) (mem. dec.) (remanding for the Board to adequately explain why a medical article suggesting that patients with psychiatric disorders and symptoms of sleep-disordered breathing should be evaluated for sleep apnea did not meet the low threshold to trigger a new VA examination).
    11
    The Board is required to “address all potentially favorable evidence.” Harvey v. Shulkin, 30 Vet.App. 10, 15 (2018). The inadequacy of the Board’s statement of reasons or bases for discounting lay statements regarding the veteran’s sleep apnea symptoms, discounting a private medical opinion supporting service connection, and determining that a VA medical examination was not warranted frustrates judicial review and necessitates remand. See Harper v. Wilkie, 30 Vet.App. 356, 363 (2018) (remanding based on the Board’s inadequate attention to potentially favorable evidence).
    B. TDIU Claim
    The veteran argues that the Board erroneously determined that the consultant who authored the March 2019 vocational opinion didn’t actually interview, test, or assess the veteran. He points to the vocational expert’s specific notation of information obtained by the veteran to support that the expert did in fact assess the veteran. Appellant’s Br. at 14-15. The Secretary agrees that the Board erred in this aspect, and remand is warranted for the Board to adequately address that piece of evidence. Secretary’s Br. at 12.
    The appellant also argues that neither of the October 2018 VA medical examinations—not the examination for PTSD and not the examination for his spine condition—opine on the combined effects of his conditions, and the Board erred in not addressing combined effects in its decision denying the claim for TDIU. The Secretary agrees that remand is warranted for the Board to address whether the combined effects of the veteran’s multiple service-connected conditions render him unable to secure or maintain substantially gainful employment. Secretary’s Br. at 13.
    Because the parties agree that remand is appropriate, the matter of entitlement to TDIU is remanded for the Board to address these issues.5
    III. CONCLUSION
    For the foregoing reasons, the appeal of those parts of the Board’s March 31, 2020, decision denying service connection for hypertension and a left hip disorder are DISMISSED. Those parts
    5 The veteran advances other issues with the Board’s assessment of the evidence before it regarding entitlement to TDIU. See Appellant’s Br. at 13-19. The Secretary rebuts that these arguments must fail, and do not serve as bases to remand the Board’s decision. Because the Court is remanding the issue of TDIU, and the veteran’s additional duty to assist argument would result in no greater relief than a remand, the Court need not address them. See Smiddy v. Wilkie, 32 Vet.App. 350, 359 (2020); Mahl v. Principi, 15 Vet.App. 37, 38 (2001) (per curiam order) (“[I]f the proper remedy is a remand, there is no need to analyze and discuss all the other claimed errors that would result in a remedy no broader than a remand.”).
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    of the Board’s March 31, 2020, decision denying service connection for sleep apnea and entitlement to TDIU are VACATED and the matters REMANDED for further consideration consistent with this opinion.
    DATED: September 30, 2021
    Copies to:
    Daniel G. Krasnegor, Esq.
    VA General Counsel (027)

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