Citation Nr: 21063746 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 15-11 797 DATE: October 15, 2021 REMANDED Entitlement to service connection for sleep apnea, to include as due to service-connected disabilities, is remanded. REASONS FOR REMAND At the outset, the Board will correct the clerical error stated in May 2021 remand. In the May 2021 remand the Board referred to an October 2010 Board remand. There is no October 2010 remand, and it should have read as "October 2020." The Board remanded this matter three times, in June 2018, October 2020, and May 2021. Disappointingly, the remand directives have not been substantially complied with and therefore another remand is required. See Stegall v. West, 11 Vet. App. 268 (1998). As described in the October 2020 and May 2021 remands, the Board found the April 2019 VA opinion and the November 2020 VA addendum opinion to be inadequate. As such, the Board will not provide further discussion on these opinions at this time. After the May 2021 remand a VA physician's assistant provided a medical opinion in June 2021. By way of a September 2021 Brief the Veteran's representative argued that the June 2021 opinions are inadequate. The Board agrees. The examiner concluded that the Veteran's sleep apnea was not caused by or aggravated by his service-connected disabilities. The rationale provided is conclusory, simply stating a review of the medical literature does not support the claim that obstructive sleep apnea (OSA) is due to the Veteran's service-connected disabilities. The opinion addressing aggravation did have more content, but the rationale too is inadequate. The examiner concluded that the aggravation was due to the Veteran's noncompliance regarding suggested treatment for his sleep apnea. The rationale stated that there is no documentation that any of the service-connected disabilities have contributed to his nonuse. As the examiner failed to provide adequate rationale to support her conclusion and relied on negative evidence the Board finds the June 2021 opinions to be inadequate. Additionally, the opinions failed to comply with the requirements pursuant to El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). For secondary service connection, the VA opinion must address aggravation and causation separately with rationale specific to those findings. The June 2021 VA opinions lump together all of the service-connected disabilities, without providing rationale specific to each service-connected disability. Lastly, despite the Veteran being afforded an in-person VA examination in April 2019, a medical opinion regarding direct theory of entitlement has not been provided. As such, the Board must remand for an addendum opinion. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994). The matter is REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should forward the Veteran's claims file to an appropriate examiner to determine the nature and etiology of the Veteran's sleep apnea, preferably with an examiner who has not been involved in this case previously. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. 2. Following review of the claim file and examination of the Veteran (if an examination is performed), the examiner should provide opinions that respond to the following: (a.) Whether it is at least as likely as not (i.e., probability of 50 percent) that the Veteran's sleep apnea, manifested during active service; or is otherwise related to an event, injury, or disease incurred during active service. (b.) Whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's sleep apnea, is proximately due to or caused by his service-connected disorders, to include his service-connected psychiatric disability and to include any medications used to treat his service-connected disorders. (c.) Whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's sleep apnea, was aggravated (worsened in severity beyond a natural progression) by his service-connected disorders, to include his service-connected psychiatric disability and to include any medications used to treat his service-connected disorders. The examiner is advised that separate and specific rationale is required when providing the opinions regarding the Veteran's service-connected disabilities and his sleep apnea. The examiner should address the lay and medical evidence of record, including the articles submitted by the Veteran in support of his claim. The articles submitted are located at: VBMS, documents labeled Web HTML Documents, receipt date March 10, 2015. The examiner is asked to provide a complete a rationale for all opinions offered. 3. The AOJ should ensure that the addendum opinions conform with the remand directives. 4. If upon completion of the above the issue remains denied, the appeal 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 T. Talamantes, 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.