Citation Nr: 20022420 Decision Date: 03/31/20 Archive Date: 03/31/20 DOCKET NO. 16-44 859 DATE: March 31, 2020 REMANDED Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected disability is remanded. REASONS FOR REMAND The Veteran had active duty service from August 1981 to December 1981, April 1999 to July 1999, from September 22, 2001 to September 23, 2001, from October 20, 2001 to November 17, 2001, and from January 2002 to September 2002; he also served with the Alabama Air National Guard from August 1985 to December 2003. In November 2017, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In February 2018, the Board denied entitlement to service connection for bilateral hearing loss and a cardiac disability and remanded the issues of entitlement to service connection for an acquired psychiatric disability, tinnitus, a chronic cervical spine disability, a chronic thoracolumbar spine disability, and obstructive sleep apnea for evidentiary development. During development, a November 2019 rating decision granted service connection for an acquired psychiatric disability (70 percent, effective September 22, 2014), tinnitus (10 percent, effective September 22, 2014), a chronic cervical spine disability (10 percent, effective September 22, 2014), a chronic thoracolumbar spine disability (10 percent, effective September 22, 2014), and cervical radiculopathy of the bilateral upper extremities (20 percent, effective September 22, 2014). This rating decision represents a total grant of benefits sought on appeal for these issues. As such, these issues are no longer before the Board. The remaining issue has since been returned to the Board for further consideration. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected disability is remanded. A review of the record reveals that a remand is necessary to ensure substantial compliance with the Board’s February 2018 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Here, the Veteran contends that his obstructive sleep apnea is secondary to his acquired psychiatric disability. In fact, an April 2017 letter from Dr. Levine states, “[The Veteran] suffers from obstructive sleep apnea which more likely due to the traumatic events that led to his major depressive disorder.” Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a) (2019). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Pursuant to the Board’s February 2018 remand, the Veteran received a VA examination in October 2019, wherein he was diagnosed with obstructive sleep apnea, dated December 2014. Ultimately, the examiner determined that the Veteran’s obstructive sleep apnea is less likely than not attributable to service. The examiner provided the following rationale: I am unable to locate any lay statement of record regarding the onset of symptoms of OSA. There is no evidence of sleep apnea or sleep problems in the STR. Sleep apnea was not diagnosed until 12/14/14. A nexus has not been established. The Board acknowledges that the Veteran submitted a sleep apnea Disability Benefits Questionnaire (DBQ) completed in December 2019. In the report, Dr. K.M. stated that “It is at least as likely as not that the Veteran’s obstructive sleep apnea is aggravated by his PTSD.” Dr. K.M. then cited to medical literature in support of this contention, however further rationale was not provided. The Board further acknowledges that the Veteran and his representative have repeatedly challenged the adequacy of the previous VA opinions, reasoning that there is insufficient rationale and conflicting information. It is also noted that the prior VA examiner did not provide an opinion as to secondary service connection. Considering the above, the Board finds the October 2019 VA examination report to be inadequate for rating purposes. Given the Veteran’s statements and the inadequate VA opinion that did not properly consider the theory of secondary service connection, the Board finds that an addendum opinion is warranted. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the October 2019 VA examiner (or a similarly situated examiner) to determine the nature and etiology of the Veteran’s claimed obstructive sleep apnea, to include as secondary to service-connected disability. The electronic claims files and all pertinent records must be made available to the examiner and the examiner must indicate in the examination report that these records have been reviewed. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. (a) The VA examiner must opine whether it is at least as likely as not (50 percent or higher degree of probability) that obstructive sleep apnea manifested in-service or is otherwise causally or etiologically related to the Veteran’s military service. (b) If not directly related to service, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or higher degree of probability) that his obstructive sleep apnea is caused by his service-connected disabilities. (c) That examiner should then opine whether the obstructive sleep apnea is aggravated (i.e., permanently worsened beyond the normal progression of that disease) by his service-connected disabilities. In offering any opinion, the examiner must consider the full record, to include the lay statements in support of the Veteran’s claim. The examiner should also reconcile any prior report (including the reports from his private providers), as necessary. The rationale for any opinions offered should be provided. If the VA examiner determines that further examination is necessary in order to render the requested medical opinion, then the Veteran should be scheduled for such an examination. 2. After the development requested has been completed, the AOJ should review any report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures at once. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Miller, 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.