Citation Nr: 21065923 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 18-48 418 DATE: October 27, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. REASONS FOR REMAND The Veteran had active military service from January 2010 to June 2010 and from February 2011 to December 2011, including service in Southwest Asia from April 2011 to November 2011. This matter comes to the Board of Veterans' Appeals (the Board) following an April 2018 rating decision denying entitlement to service connection for obstructive sleep apnea. The Veteran participated in a hearing before the undersigned Veterans Law Judge in June 2021. A transcript of this hearing is of record. In June 2020, the Veteran attempted to opt into the modernized review system, also known as the Appeals Modernization Act (AMA) by submitting a supplemental claim. However, he did not properly withdraw his claim from the legacy appeals process by selecting the option to opt-in from his January 2019 Supplemental Statement of the Case (SSOC). Accordingly, this appeal remains in the legacy review system. 1. Entitlement to Service Connection for Obstructive Sleep Apnea The Veteran contends that his obstructive sleep apnea is secondary to his service-connected posttraumatic stress disorder (PTSD). In the alternative, he contends that his obstructive sleep apnea was caused by exposure to environmental hazards, including burn pits, dust particulates, and pollution. Although he was not formally diagnosed with obstructive sleep apnea until 2017, he adds that he has had the same sleep apnea symptoms since the end of his active service and that he was not diagnosed earlier because his healthcare providers were unwilling to perform a sleep study. When the Department of Veterans Affairs (VA) provides an examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). To be adequate, a medical examination report must contain clear conclusions, supporting data, and a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The examination should be based upon consideration of the Veteran's prior medical history and describe the disability and symptoms in sufficient detail to allow the Board to make a fully informed decision. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). During the June 2021 hearing, the Veteran's representative contended that the previous VA examinationswhich occurred in December 2017, February 2018 with a clarification opinion in March 2018, and April 2018were inadequate and therefore insufficient to allow the Board to make a fully informed decision. The Board agrees. First, the medical opinion regarding secondary service connection is inadequate. The VA examiner who proffered the December 2017 opinion opined that it is less likely than not that the Veteran's obstructive sleep apnea is due to or the result of his PTSD. Her rationale discussed the physiological causes of obstructive sleep apnea and that the male gender is a risk factor for the development of obstructive sleep apnea. However, she did not explain the importance of these statements, nor did she discuss the relationship, if any, between PTSD and the development of obstructive sleep apnea. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board is prohibited from making conclusions based on its own medical judgment). Moreover, this opinion did not address whether the Veteran's service-connected PTSD aggravated his obstructive sleep apnea. See El-Amin v. Shinseki, 26 Vet. App. 136, 141 (2013) (holding that a medical opinion is adequate when it fails to adequately address the question of aggravation). Second, the February 2018 VA medical opinion and the accompanying March 2018 clarification opinion are also inadequate. In February 2018, the examiner offered a positive nexus opinion, concluding that the Veteran was diagnosed with obstructive sleep apnea "during the continuous interval of military service." As the Veteran had not served on active duty since 2011 and was diagnosed with obstructive sleep apnea in 2017, the AOJ requested a clarification opinion in March 2018. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The examiner's March 2018 opinion did not clarify this discrepancy. Instead, he merely opined that the Veteran's obstructive sleep apnea is less likely than not secondary to his service-connected PTSD. He did not provide a rationale for this opinion. As such, it is insufficient for the Board to make a determination. See Nieves-Rodriguez, 22 Vet. App. at 301. Finally, concerning the Veteran's claim for direct service connection, no VA examiner has opined on whether his current obstructive sleep apnea is etiologically related to his in-service exposure to environmental hazards such as burn pits, dust particulates, and pollution. This contention must be addressed upon remand as well. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination for his obstructive sleep apnea. The Veteran's claims file must be made available to the examiner. After reviewing the claims file, with any necessary examination and testing, the examiner should opine on the following: (a.) Is the Veteran's obstructive sleep apnea at least as likely as not (a 50 percent or greater probability) related to service, including his reports of in-service sleep difficulties and/or exposure to environmental hazards such as burn pits, dust particulates from the air conditioner, and/or pollution? (b.) Is the Veteran's obstructive sleep apnea at least as likely as not (a 50 percent or greater probability) proximately due to any of his service-connected disabilities? The examiner should specifically address the effects of the Veteran's PTSD and the medications that he used to treat the same. (c.) Is the Veteran's obstructive sleep apnea at least as likely as not (a 50 percent or greater probability) aggravated (underwent any incremental increase in disability or any additional impairment of earning capacity, regardless of its permanence) by any of his service-connected disabilities. The examiner should specifically address the effects of the Veteran's PTSD and the medications that he used to treat the same. (d.) The examiner must provide a rationale for the opinions provided. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M. Sachs, Associate 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.