Citation Nr: 21065828 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 19-11 093 DATE: October 27, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea as secondary to anxiety disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 1993 to April 2003. His decorations include the Joint Meritorious Unit Award, the Army Lapel Button, and the Army Good Conduct Medal. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. In a May 2020 decision, the Board, in pertinent part, denied the Veteran's claim for service connection for obstructive sleep apnea. He appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In March 2021, the Court granted a Joint Motion for Partial Remand (JMPR) filed by the parties to the appeal (the Veteran, through an attorney, and representatives from VA General Counsel), thereby vacating the Board's decision insofar as it denied service connection for obstructive sleep apnea and remanding that matter for additional development and readjudication. In June 2021, the Veteran's representative requested an extension of time for purposes of submitting additional evidence in support of the Veteran's appeal. Although the request for extension was granted, no additional evidence has thus far been received. As the case is being remanded for further development, the Veteran and his representative remain free to submit additional evidence and/or argument while the case in is remand status, if they wish to do. Entitlement to service connection for obstructive sleep apnea as secondary to anxiety disorder is remanded. The Veteran seeks to establish service connection for sleep apnea. He asserts that his currently diagnosed obstructive sleep apnea is secondary to his service-connected anxiety disorder. He has contended that his anxiety led to weight gain, which is a significant risk factor for developing sleep apnea. See, e.g., February 2017 VA Form 21-4138. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Under applicable law, disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). In the present case, as noted in the May 2020 Board decision, the Veteran has been diagnosed with obstructive sleep apnea. See, e.g., April 2017 VA examination report. He is also service connected for an anxiety disorder. See, e.g., February 2017 rating decision. The question for the Board's consideration is whether the sleep apnea is secondary to the service-connected anxiety disorder. In its May 2020 decision, the Board denied the Veteran's claim. As to the aggravation prong of secondary service connection, the Board found that there was no indication that the Veteran's sleep apnea had gotten worse, let alone due to aggravation by anxiety. In the JMR filed with the Court, the parties to the appeal agreed that because the VA examiners who provided medical opinions as to secondary service connection did not address whether the Veteran's sleep apnea was aggravated by his service-connected anxiety disorder, the Board's finding of a lack of aggravation was impermissible. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("Without a medical opinion that clearly addresses the relevant facts and medical science, the Board is left to rely on its own lay opinion, which it is forbidden from doing."). As such, the parties agreed that remand was required for a new examination. This matter is REMANDED for the following action: 1. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. After the foregoing development has been completed, arrange to provide the claims file to a qualified clinician for purposes of obtaining an opinion with respect to the etiology of the Veteran's sleep apnea. After reviewing the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran's sleep apnea has been aggravated (i.e., permanently or temporarily worsened) by his service-connected anxiety disorder. In so doing, the examiner should specifically indicate whether it is at least as likely as not that there has been an increase in the severity of the Veteran's sleep apnea since the onset of the anxiety disorder, on either a permanent or temporary basis and, if so, whether the increase in severity in sleep apnea can in any way be attributed, in whole or in part, to the anxiety disorder. A complete medical rationale for all opinions expressed must be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Ragheb, 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.