Citation Nr: 21002070 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 10-42 788 DATE: January 12, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for bilateral ankle disorders is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1980 to June 1994 with service in Southwest Asia from October 1990 to April 1991. He is the recipient of, among other decorations, the Army Commendation Medal. The Veteran had additional National Guard service from June 1994 to June 2004. This case comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions in January 2010 and October 2012 issued by the Department of Veterans Affairs (VA) Regional Office (RO or AOJ). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Video Conference Board Hearing in February 2017. A transcript of the hearing is of record. This case was previously before the Board in June 2017 when it was remanded for additional development to include obtaining VA examinations. In October 2019, the case was again remanded to obtain the Veteran’s Texas National Guard service treatment records. In this regard, the Board notes that in March 2020 and May 2020, Veteran’s Report of Separation and Record of Service, and Points History Summary were received from the Texas Military Department. In September 2020, a DD Form 2963, Service Treatment Record Certification, was associated with the claims file indicating no further records exist. However, the Board finds that additional evidentiary development is required before adjudication of the issues of entitlement to service connection for obstructive sleep apnea and for bilateral ankle disorders. Stegall v. West, 11 Vet. App. 268 (1998). Obstructive Sleep Apnea The Veteran contends that his obstructive sleep apnea disability is secondary to his service connected posttraumatic stress disorder (PTSD). See February 2017 hearing transcript. A March 2018 addendum VA medical opinion was obtained to address the secondary service connection question. The examiner found that the Veteran’s obstructive sleep apnea had not been aggravated by any service connected condition noted on record at the time of that examination. However, service connection for PTSD was subsequently granted in an August 2019 rating decision. In a July 2019 VA medical opinion for PTSD, the examiner noted the Veteran’s sleep apnea is a “diagnosis relevant to the understanding and management of the mental health disorder.” Thus, a new VA opinion is warranted to address this theory of entitlement to service connection for obstructive sleep apnea, to include as due to the Veteran’s service-connected PTSD. Bilateral Ankle Disorders The Veteran contends that he sustained bilateral ankle disorders as a result of in-service injuries. He points to three instances wherein he was given a period of light duty following a basketball injury, after stepping on a rock, and after his left foot got caught in a tank turret while on maneuvers. See February 2017 hearing transcript. Pursuant to the Board’s June 2017 remand, an addendum opinion was obtained in March 2018, wherein the examiner found that the Veteran’s bilateral ankle disorders was less likely than not related to his service. Reference was made to lack of chronic disability until several years after service. Additionally, the examiner stated that the Veteran’s bilateral ankle disorders had not been aggravated by any service-connected conditions noted on record at the time of that examination. It is unclear from the opinion if the examiner addressed whether the Veteran’s bilateral ankle disorders were caused or aggravated by the Veteran’s subsequently determined lumbosacral sprain. Moreover, even if consideration had been given to his now service connected back disability, the negative opinion is does not align to the Court’s more recent holding in Ward v. Wilkie, 31 Vet. App. 233 (2019). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to address the nature and etiology of his sleep apnea. Following examination, review of the records, and consideration of the lay evidence, the examiner should provide opinions as to whether it is at least as likely as not (50 percent probability or greater) that obstructive sleep apnea: a) that had its onset during active service, or b) that is etiologically related to his active service, or c) that was proximately due to a service-connected disability, to include PTSD, or d) underwent any incremental increase in disability, regardless of its permanence, due to a service connected disability, to include PTSD. The term “incremental increase in disability” means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any “incremental increase in disability” need not be permanent A complete rationale for any opinion expressed must be provided. An examiner’s report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. 2. Schedule the Veteran for a new VA examination to address the nature and etiology of his bilateral ankle disorder. Following examination, review of the records, and consideration of the lay evidence, the examiner should address the following: a) Identify/diagnose any disability of the right and/or left ankle that presently exist or that has existed during the appeal period. Such should include discussion as to whether the Veteran has or has had functional impairment of the left and/or right ankle. b) For each identified disability or disorder of the ankles, state whether it is at least as likely as not (50 percent probability or greater) that the disorder: i) had its onset during active service, or ii) is etiologically related to his active service, or iii) was proximately due to his service-connected disability(ies), to include low back disability, or iv) underwent any incremental increase in disability, regardless of its permanence, due to a service connected disability, to include low back disability. The term “incremental increase in disability” means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any “incremental increase in disability” need not be permanent A complete rationale for any opinion expressed must be provided. An examiner’s report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. 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.