Citation Nr: 21003668 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 17-24 102 DATE: January 22, 2021 REMANDED Entitlement to a higher (compensable) rating for sleep apnea. REASONS FOR REMAND The Veteran served on active duty from February 1981 to March 1990, from January 1991 to December 1994, and from January 2003 to June 2004, to include service in Iraq. In a September 2016 rating decision, the RO granted service connection for sleep apnea and assigned a noncompensable (zero percent) rating, effective April 27, 2012 , on the basis of aggravation by a service-connected disability. The Veteran filed a notice of disagreement in October 2016. A statement of the case (SOC) was issued in April 2017, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) in May 2017. In September 2020, the Veteran testified via videoconference hearing before the undersigned VLJ. A copy of the transcript has been associated with the Veteran’s claim file. At the outset, the Board notes that the Veteran is arguing for a higher rating on the basis that sleep apnea is directly related to service or is caused by medication used to treat his service-connected spine disability. See VA Form 9. A VA medical etiology opinion was obtained in June 2016. The VA examiner concluded that the Veteran’s sleep apnea was not related to his active service. As rationale, she stated that the Veteran’s service treatment records (STRs) do not evidence any sleep issues in service. However, the Veteran testified that his sleeping issues began in service while deployed to Iraq. See December 2015 Board hearing transcript. The examiner’s negative etiology opinion on a direct basis appears to be based entirely on the absence of complaints, treatment or diagnosis of sleep apnea in service; thus, the examiner’s opinion is inadequate. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination is inadequate where the examiner did not comment on a veteran’s report of in-service injury and instead relied on the absence of evidence in a veteran’s service medical records to provide a negative opinion). Regarding service connection on a secondary basis, the examiner opined that the Veteran’s sleep apnea was not proximately due to or caused by his service-connected condition. As rationale, she cited general medical literature pertaining to the risk factors for sleep apnea; however, she did not address anything specific to the Veteran, which is impermissible. The Board also notes that although the examiner found that the Veteran’s sleep apnea was aggravated by service, she did not establish a baseline as to the severity of his disability. On remand, a VA addendum opinion should be obtained with complete rationale as to whether the Veteran’s sleep apnea is related to his active service and whether medication taken for the Veteran’s service-connected spine and/or mental health conditions caused sleep apnea. A recalculation of baseline should also be made. The matter is REMANDED for the following action: 1. Undertake appropriate development to obtain all outstanding VA and/or private treatment records related to the Veteran’s claim. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified. 2. The RO must provide the Veteran’s claims file to the examiner who provided the June 2016 VA medical opinion, or if she is unavailable, to a new examiner who is qualified to give an opinion on the Veteran’s sleep apnea. A new examination is only required if deemed necessary by the examiner. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. Following the review of the claims file, the examiner must provide an opinion including specific findings as to the following: (a) Whether it at least as likely as not (a 50 percent probability or greater) that sleep apnea began during active service or is related to any incident of service. (b)Whether it at least as likely as not (a 50 percent probability or greater) that the Veteran’s sleep apnea is proximately due to or the result of medication taken for his service-connected DDD and/or mood disorder. (c) If the answers to (a) and (b) are not beneficial to the Veteran, the examiner is requested to provide an opinion as to approximate baseline level of severity of the nonservice-connected disorder before the onset of aggravation. As part of the opinion, the examiner must address the Veteran’s competent lay statements regarding onset in his/her rationale, as well as any relevant statements from treatment records. The examiner must provide a complete explanation for his/her opinion(s), based on clinical experience, medical expertise, and established medical principles. If any of the above-requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. 3. After all development has been completed, the AOJ should review the case again based on the additional evidence. If the benefits sought are not granted, the AOJ should furnish the Veteran with a supplemental statement of the case, and should give the Veteran a reasonable opportunity to respond before returning the record to the Board for further review. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Kovacs, 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.