Citation Nr: 21004373 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 15-09 985 DATE: January 27, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1964 to May 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision by the Department of Veterans Affairs (VA). This case was remanded in May 2018 and July 2020 for further development. In June 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. Entitlement to service connection for obstructive sleep apnea. The Board remanded this matter for new opinions regarding direct and secondary service connection. The Veteran testified that his sleep apnea symptoms, such as gasping and running out of breath in the middle of the night, began during service. See June 2017 Board hearing. A November 2020 VA examiner opined it was less likely than not that the Veteran’s obstructive sleep apnea was related to service. The examiner mostly discussed the Veteran’s PTSD and dismissed his lay statements about symptoms because they were not objective. See November 2020 VA medical opinion. This opinion is inadequate because it does not consider the Veteran’s competent lay evidence regarding his symptoms during service. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). As a result, remand for a new opinion is necessary. The November 2020 VA examiner also opined that it was less likely than not that the Veteran’s service-connected PTSD caused his sleep apnea. However, the opinion is inadequate because the examiner merely listed facts in the claim file and then relied on the absence of evidence in medical literature in his rationale. The examiner also appears to opine that the Veteran’s obstructive sleep apnea improved and that he may not even have the disability anymore. It is unclear whether the examiner was opining that the Veteran’s PTSD did not aggravate his obstructive sleep apnea or whether there is no disability. Thus, remand is necessary for clarification in a new medical opinion. The matter is REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records from November 2020 to the present. 2. After the above development is completed, the AOJ should arrange for a VA medical opinion with a new examiner, with examination or telehealth interview of the Veteran only if deemed necessary by a medical professional, to determine the nature and likely cause of the Veteran’s obstructive sleep apnea. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Is it at least as likely as not (50% or greater probability) that the Veteran’s obstructive sleep apnea was either incurred in or otherwise related to his military service? Please explain why. The examiner must discuss the Veteran’s competent reports of gasping and running out of breath in the middle of the night during service. The examiner may not dismiss these lay reports by simply stating they are subjective or because there is no medical evidence of record in service treatment records (STRs). Conclusory rationales will not be deemed adequate. (b.) Is it at least as likely as not (50% or greater probability) that the Veteran’s obstructive sleep apnea was either caused or aggravated by his service-connected PTSD? Please explain why. The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. The opinions must discuss the medical articles submitted by the Veteran in June 2017. CONTINUED ON NEXT PAGE 3. If upon completion of the above action the issue remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Sandler, 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.