Citation Nr: 20022446 Decision Date: 03/31/20 Archive Date: 03/31/20 DOCKET NO. 17-08 861 DATE: March 31, 2020 REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from December 1986 to January 1987, from February 1991 to March 1991, from December 2007 to June 2008, from July 2008 to October 2008, from November 2008 to April 2009, From May 2009 to September 2009 and from September 2009 to February 2010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. This matter was last before the Board in January 2019, at which time a decision was rendered denying service connection. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court) which, in a September 2019 decision, granted a Joint Motion for Remand (JMR) and remanded this matter back to the Board. Entitlement to service connection for obstructive sleep apnea is remanded. VA obtained an addendum opinion in June 2017. The examiner then opined that it is less likely than not that the Veteran's obstructive sleep apnea had been permanently worsened or aggravated due to his service-connected posttraumatic stress disorder (PTSD), noting that there are no records documenting a worsening. Recently, the court has held that a ‘permanent worsening’ standard has no application in cases involving an incremental increase in disability of a non-service-connected condition proximately due to or the result of a service-connected disease or injury. Ward v. Wilkie, 31 Vet. App. 233, 240 (2019); see also 38 C.F.R. § 3.310 (b). As such, aggravation under 38 C.F.R. § 3.310 (b) does not require that there be "permanent" worsening of the nonservice connected disability. Any increase in disability is sufficient. For the above reason, the June 2017 VA examiner’s opinion regarding secondary service connection for obstructive sleep apnea is inadequate and a remand is required. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from October 2019 to the present. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s obstructive sleep apnea is aggravated beyond its natural progression by service-connected PTSD. All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records. 3. After completing the requested actions, and any additional development deemed warranted, readjudicate the claims in light of all pertinent evidence and legal authority. If the benefit sought remains denied, furnish to the Veteran and his representative a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Keeley, Brian 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.