Citation Nr: 18153022 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 10-04 174A DATE: November 27, 2018 REMANDED Entitlement to service connection for obstructive sleep apnea, including as secondary to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1967 to September 1969. The Veteran and his wife testified at a videoconference hearing in February 2014 before the undersigned Veterans Law Judge (VLJ) of the Board of Veterans’ Appeals (Board/BVA). This case was most recently before the Board in August 2017 when the claim was denied and an additional claim of entitlement to a total disability rating due to individual unemployability resulting from service-connected disabilities (TDIU) instead was remanded for additional development. The Veteran appealed the decision denying the claim for obstructive sleep apnea to the United States Court of Appeals for Veterans Claims (Court). In May 2018, the Court granted a Joint Motion for Remand (JMR), vacating the Board’s August 2017 decision with regard to this issue of entitlement to service connection for obstructive sleep apnea, including as secondary to service-connected disabilities, and remanding this claim to the Board for further consideration. The Board, in turn, is remanding this obstructive sleep apnea claim to the Agency of Original Jurisdiction (AOJ). The Board also sees that, since the prior August 2017 Board remand, the Veteran has not been issued a Supplemental Statement of the Case (SSOC) regarding the additional issue of entitlement to a TDIU and this claim has not been returned to the Board for further appellate consideration. Therefore, it remains on remand, is not currently before the Board for adjudication, and will not be discussed below. Entitlement to service connection for obstructive sleep apnea, including as secondary to service-connected disabilities, is remanded. The parties to the May 2018 JMR agreed that the June 2015 addendum opinion did not include an opinion regarding whether the Veteran’s obstructive sleep apnea is being aggravated by his service-connected disabilities and, therefore, there was not compliance with the January 2015 Board remand order. The parties to the JMR agreed that another remand resultantly is required to obtain a supplemental opinion that substantially complies with the January 2015 Board remand order. As such, the claim is remanded to obtain a VA medical opinion regarding whether the Veteran’s obstructive sleep apnea is being aggravated by his service-connected disabilities. See Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court’s order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand). Two opinions are required in secondary-service-connection claims, namely, not just concerning whether service-connected disabilities caused the additional condition being claimed, but also whether the service-connected disabilities are aggravating this additional condition. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310(a) and (b). Review of the claims file reveals that the Veteran receives treatment from VA. The most recent VA treatment records regarding the Veteran associated with the claims file are dated in January 2018. On remand, attempt to obtain and associate with the claims file all VA treatment records regarding the Veteran dated since January 2018. See 38 C.F.R. § 3.159. This claim accordingly is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period beginning January 2018. 2. Forward the Veteran’s file to the examiner that completed the June 2015 Sleep Apnea addendum opinion, if still available, for a supplemental medical opinion. The file must be made available to the examiner for review of the relevant history. A notation to the effect that this record review took place should be included in the examiner’s report. If that examiner is not available, refer the file to a similarly qualified health care professional. If deemed appropriate by the examiner or the Regional Office/Appeals Management Office, the Veteran must be afforded any clarifying examination(s). After considering the examination findings and other relevant evidence of record, the examiner must provide an opinion as to the likelihood (likely, as likely as not, or unlikely) that the Veteran’s sleep apnea is being aggravated by his service-connected disabilities, meaning by any or all of them in combination, to include considering whether the Veteran’s obesity was aggravated by his service-connected disabilities and in turn led to the development of obstructive sleep apnea. The examiner is advised that the Veteran’s difficulty falling or staying asleep has been recognized as a symptom, instead, of his service-connected posttraumatic stress disorder (PTSD). This additional claim is apart from that, for obstructive sleep apnea. Evidence of baseline disability is necessary to establish entitlement to service connection for aggravation of a nonservice-connected condition by a service-connected condition. An opinion stating that something “is not related to” or “is not due to” does not answer the question of aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310(b). The term “as likely as not” means at least 50-percent probability. It does not however mean merely within the realm of medical possibility, rather, that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation/aggravation as it is to find against it. (Continued on the next page)   It is imperative the examiner discuss the rationale of the opinion in response to this question, whether favorable or unfavorable, if necessary citing to specific evidence in the file supporting conclusions. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel