Citation Nr: 21061759 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 18-49 963 DATE: October 5, 2021 REMANDED Entitlement to service connection for a sleep disorder to include sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from February 1989 to February 2009 with service in Iraq during the Persian Gulf War. In May 2021, and Veteran and a friend testified at a hearing before the undersigned and a transcript of that hearing is included in the claims folder. Entitlement to service connection for sleep apnea is remanded At the May 2021 hearing the Veteran raised for the first time a new theory of entitlement. Specifically, he testified that his sleep apnea was due to the medicine he takes to treat his service-connected acquired psychiatric disorder. Tellingly, the record shows that the Veteran is service-connected for an acquired psychiatric disorder. The record also shows that the regional office (RO) in September 2018 obtained an etiology opinion. However, the September 2018 examiner did not, and could not have, addressed the Veteran's new second service connection claim because it was not raised at that time. Therefore, the Board finds that a Remand is required to obtain another etiology opinion that addresses all theories of entitlement. See 38U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); ElAmin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that, when multiple theories of entitlement are at issue, the Board must ensure that the medical opinions of record directly address all theories reasonably raised by the record). In providing the opinion and when again adjudicating the appeal, the examiner and RO should be mindful of the fact that the United States Court of Appeals for Veterans Claims (Court) in Ward v. Wilkie, 31 Vet. App. 233 (2019) redefined the definition of aggravation to know include temporary flare-ups. Also, in providing the opinion and when again adjudicating the appeal, the examiner and RO should be mindful of the fact that the Court in Joyner v. McDonald, 766 F.3d 1393, 1395 (Fed. Cir. 2014) held that in appeals, like the current appeal, the Board needs to always consider 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 in cases in which Veterans served in the Persian Gulf since August 2, 1990. Next, the Board notes that at the May 2021 personal hearing the Veteran testified that on approximately May 6, 2021, he obtained a direct nexus opinion from a Dr. Ho that he had not as yet provided to the RO. Moreover, while the Veteran testified that, following the hearing, he would provide the opinion to his representative who would than file it with the RO, Dr. Ho's opinion is not found in the record, Therefore, while the appeal is in remand status the Veteran should be asked to provide the RO with a copy of Dr. Ho's nexus opinion as well as authorizations for the RO to obtain other outstanding private treatment records. See 38 U.S.C. § 5103A(b); Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992) (holding that when reference is made to pertinent medical records, VA is on notice of their existence and has a duty to assist the Veteran to attempt to obtain them). Also, while the appeal is in Remand status, the RO should obtain and associate with the record any outstanding VA treatment records. See 38 U.S.C. § 5103A(b). The appeal is REMANDED for the following actions: 1. Ask the Veteran to provide the RO with the May 6, 2021, nexus opinion from a Dr. Ho he testified about at his May 2021 personal hearing or an authorization for the RO to obtain and associate it with the claims file. Any help from the Veteran and his representative in obtaining this nexus opinion would be appreciated. 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any other outstanding private treatment records. If possible, the Veteran himself or his representative should submit any new pertinent evidence the Board/VA does not have (if any). Any help with the above would be appreciated. 3. Obtain and associate with the claims file any outstanding VA treatment records. If possible, the Veteran himself should submit and new pertinent evidence the Board/VA does not have (if any). Any help with the above would be appreciated. 3. Schedule the Veteran for a VA examination with a suitably-qualified medical professional to address his claim of service connection for a sleep disorder to include sleep apnea. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. After a consideration of the evidence of record (both lay and medical) and the results of the examination, the examiner is asked to address the following: a. Provide diagnoses for all sleep disorders. b. As all diagnosed sleep disorders, including sleep apnea, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that it had its onset directly during the Veteran's service or is otherwise related to any event or injury during including due to his presumptive toxin exposure because of his service in Iraq during the Persian Gulf War. c. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any sleep disorder including leep apnea was caused by the medication the Veteran takes to treat his service-connected psychiatric disorder. d. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any sleep disorder including leep apnea was aggravated by the medication the Veteran takes to treat his service-connected psychiatric disorder. e. If a nexus to his service cannot be established for any sleep disorder, please provide an opinion as to whether the disability pattern is consistent with any of the following: (i) an undiagnosed illness, (ii) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, (iii) a diagnosable chronic multisymptom illness with a partially explained etiology, or (iv) a disease with a clear and specific etiology and diagnosis. f. If, after reviewing the claims file, you determine that the Veteran's disability pattern is consistent with either (iii) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (iv) a disease with a clear and specific etiology and diagnosis, then please provide a medical opinion as to whether it is at least as likely as (i.e., at least equally probable) that the disability pattern or diagnosed disease is related to environmental exposures experienced by the Veteran during his service to include his service in the Southwest Asia theater of operations. In providing answers to the above questions the examiner should specifically consider the Veteran's service treatment records. In providing answers to the above questions the examiner is also advised that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In providing answers to the above questions the examiner should be aware of the facts that the Court held in Ward, supra, that a "permanent worsening" of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability). (Continued on the next page) In providing answers to the above questions please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. If the examiner cannot respond to an inquiry without resort to speculation as to any of the above claims he or she should so state, and must further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.T. Werner, 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.