Citation Nr: 21063550 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 15-33 238 DATE: October 14, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected migraine headaches, is remanded. REASONS FOR REMAND The Veteran served on active duty in the Navy from March 1992 to March 2012. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. This matter was previously before the Board in August 2018, June 2020, and March 2021, where it was remanded for additional development. The Board notes there was substantial compliance with its March 2021 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Veteran contends that he currently has OSA that had its onset during active duty service, is etiologically related to his active duty service, or is otherwise proximately caused or aggravated by his service-connected migraine headaches. After review of the record, the Board finds that additional development of the medical evidence is needed, in accordance with VA's duty to assist. In September 2020, the RO obtained VA medical opinions in response to the conflicting evidence of record regarding whether the Veteran had a diagnosis of sleep apnea during the appeal period. Upon review, the VA examiner noted that the Veteran does have objective findings of OSA, as shown in a 2013 sleep study, and opined that it was at least as likely as not that the OSA and sleep disturbance symptoms began during the Veteran's active duty service, as documentation of objective findings of sleep apnea was found shortly after discharge from service. See C&P Exam, September 2020. Nevertheless, the Board finds this medical opinion to be inadequate, as the examiner failed to provide a rationale that actually relates the Veteran's condition to an in-service event, injury, or incurrence, as required in a direct service connection claim. As a result of the September 2020 VA examiner noting a diagnosis of OSA and providing an inadequate positive medical opinion, VA requested an addendum VA medical opinion regarding whether the Veteran's diagnosis has since resolved due to there being no diagnosis given in the March 2019 VA examination, and to provide an adequate opinion/rationale with consideration of the Veteran's lay statements of onset of symptoms during active service and relevant medical records. See C&P Exam, December 2020. In December 2020, a VA medical opinion was provided where the examiner noted that there are no complaints of sleep issues in the records. The examiner concluded that although the 2013 sleep study revealed mild OSA results, it is likely the condition has resolved, and thus, there is a negative causation to service. See Id. Nevertheless, the Board finds this medical opinion to be inadequate, as the examiner's rationale is based on inaccurate medical facts (noting that there are no complaints of sleep issues in the records). In fact, the record includes numerous complaints from the Veteran regarding his sleeping difficulties since active service. Additionally, the Board notes that resolution of the Veteran's sleep apnea is not dispositive of the Veteran's claim, and regardless of whether the condition is currently resolved or not, the Veteran can still be compensated, as it was a diagnosed condition during the appeal period. In June 2021, the Veteran was provided a VA medical opinion on a secondary basis, specifically to address the aggravation prong of the secondary service connection claim. Upon review, the examiner provided an unfavorable opinion, with a rationale almost verbatim of that given in the December 2020 VA medical opinion. Therefore, for the same reasons noted above, the Board also finds this medical opinion to be inadequate. As the record does not contain adequate VA medical opinions on a direct and/or secondary (aggravation prong) basis, the Board finds that addendum VA medical opinions are needed, prior to readjudication of the claim. Accordingly, a remand is necessary to address the matters discussed above. The matter is REMANDED for the following action: 1. Request the Veteran to identify all medical providers (VA and private) from whom he has received treatment for his OSA and obtain any outstanding records and associate them with the Veteran's claims file. 2. After associating all newly acquired records with the claims file, provide the Veteran with addendum VA medical opinions by an appropriate clinician, who has not previously provided an opinion in this matter, to determine the nature and etiology of the Veteran's OSA. The entire claims file, including a copy of this remand, must be made available to the examiner, and note review of the record in the examination report. Any indicated tests or studies should be performed, and all material relevant evidence should be discussed. All pertinent medical complaints, symptoms, and clinical findings must be reported in detail. The Veteran should be scheduled for another examination if deemed necessary by the person providing the addendum report to address the following: (a) Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's OSA had its onset during any period of active duty service, or is otherwise etiologically related to his active duty service. Please note: for purposes of this opinion, the examiner must take as fact that OSA was diagnosed during the appeal period, and thus, the examiner cannot rely on the Veteran's OSA being resolved. The examiner must consider the Veteran's lay statements that he experienced symptoms during active duty service. (b) Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's OSA was caused or aggravated (beyond its natural progression) by his service-connected migraine headaches. Please note: the examiner must address both causation and aggravation in the requested opinion. (c) Any opinion should include a detailed rationale. The examiner should consider the entire claims file, and discuss the appellant's and Veteran's lay statements regarding the nature, onset, and chronicity of symptoms. The examiner is advised that the Veteran are competent to report symptoms, and that his reports must be considered in formulating the requested opinion. In providing the opinions, the examiner is asked to reconcile any conflicting medical evidence or opinions of record. (d) If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rational for the conclusion that an opinion could not be provided without resorting to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. The RO must review the obtained examination report/addendum opinion to ensure compliance with the above directives and undertake corrective action for any deficiencies prior to returning the case to the Board. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Hodges, 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.