Citation Nr: 21067209 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 16-22 630 DATE: November 3, 2021 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran served in the United States Marine Corps on active duty from January 2009 to January 2013. The issue comes before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in March 2019. A transcript of the hearing has been included with the record. The issue was previously before the Board in September 2019 and January 2021. The Board remanded for further development. In July 2021, the Board again remanded the Veteran's claim to provide an addendum opinion addressing whether the Veteran's obstructive sleep apnea was aggravated by service-connected disabilities. Although the Board regrets further delay, another remand is necessary to provide the Veteran with every possible consideration. Further development is necessary prior to appellate review to provide the Veteran with an adequate VA medical opinion. Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities, is remanded. The Veteran contends that he suffers from sleep apnea associated with his service-connected acquired psychiatric condition. In August 2021, the RO provided the Veteran an addendum medical opinion to address the Veteran's sleep apnea, claimed as secondary to the Veteran's service-connected mental health condition. The VA examiner noted the Veteran's diagnosis of very mild positional obstructive sleep apnea (OSA), and noted the Veteran's condition was due to sleeping in a supine position. The VA examiner provided the opinion that the Veteran's OSA was less likely due to a psychiatric disorder, to include depression or posttraumatic stress disorder (PTSD). The examiner noted the Veteran's reported symptoms of nightmares and panic attacks do not cause OSA. The VA examiner reiterated the March 2021 opinion that OSA is characterized by upper airway obstruction, which is physiological in nature; not psychological. Additionally, the VA examiner provided the medical opinion that the Veteran's OSA was less likely as not aggravated beyond its natural progression by the Veteran's service-connected disability. The examiner provided the rationale that the Veteran was diagnosed with mild positional OSA in March 2019, and too much time has passed since he left service in 2013. Further, the VA examiner provided a medical opinion that the Veteran's service-connected psychiatric disorders did not cause the Veteran to become obese. The VA examiner noted that while the Veteran's psychiatric disorders are risk factors to weight gain, obesity is multifactorial and may be prevented with dietary discretion and exercise independent of the presence of depression and PTSD. Moreover, the examiner opined that obesity was not a substantial factor with mild positional OSA. The RO requested an additional opinion regarding the Veteran's OSA secondary to his service-connected mental health condition in September 2021. The VA examiner stated that there was no evidence of aggravation. Again, the examiner reported the Veteran's OSA was not due to major depression or PTSD as those are psychological and the Veteran's OSA is physiological. VA's duty to assist includes providing an examination and obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159. VA has a duty to provide the veteran a thorough medical examination, one which takes into account the veteran's prior medical history and provides sufficient detail so that the Board's evaluation of the claimed disability is fully informed. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Additionally, when a veteran's claim includes a secondary service connection theory of entitlement, VA must provide an opinion as to whether the veteran's claimed disability is proximately due to or aggravated by his service-connected disabilities. See 38 C.F.R. § 3.310. Causation and aggravation are independent concepts, and VA must ensure medical examinations have separate findings and rationales. See Atencio v. O'Rourke, 30 Vet. App. 74, 91 (2018). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 299-304 (2008). The August 2021 and September 2021 VA medical opinions did not provide a clear conclusion addressing the etiology of the Veteran's OSA as secondary to the Veteran's service-connected mental health condition. Notably, the VA examiner only stated that evidence of aggravation did not exist. Further, the VA examination did not provide an adequate opinion as to whether the Veteran's obesity was related to his service-connected disabilities, or whether the Veteran's OSA was related to his obesity. The examiner provided little supporting data or reasoned medical explanation in support of the negative nexus opinion. Accordingly, remand is required to provide the Veteran an adequate medical opinion addressing his OSA as secondary to his service-connected disabilities. The matters are REMANDED for the following action: Obtain a medical opinion from a qualified VA examiner, other than the examiner that provided the September 2021 and August 2021 opinions, if possible, regarding the Veteran's sleep apnea. If the clinician determines that an examination is needed to provide the requested opinion, then such examination should be scheduled and may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. Following a review of the record, the examiner must opine as to: a) Whether it is at least as likely as not (50 percent probability or more) the Veteran's sleep apnea condition was proximately caused by or the result of the Veteran's service-connected acquired psychiatric disorder, to include major depressive disorder and PTSD, including as a result of treatment or medication taken for any service-connected disability. b) Whether it is at least as likely as not (50 percent probability or more) the Veteran's sleep apnea condition was aggravated by the Veteran's service-connected acquired psychiatric disorder, to include major depressive disorder and PTSD, including as a result of treatment or medication taken for any service-connected disability. Further, the examiner must provide a medical opinion addressing the Veteran's obesity as an intermediate cause to the Veteran's sleep apnea condition. The examiner shall opine as to the following: c) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's service-connected psychiatric disorder caused the Veteran to gain weight or become obese. d) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's weight gain or obesity was a substantial factor in causing the Veteran's sleep apnea condition. e) Whether it is at least as likely as not (50 percent or greater probability) that sleep apnea would not have occurred but for weight gain or obesity caused by the service-connected disability. The examiner must provide a comprehensive report including a clearly stated rationale for any opinions offered and conclusions reached, citing the objective medical findings leading to the conclusions, and must not be based solely on the lack of records. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of his disability. If such reports are rejected by the examiner, a reason for doing so must be provided. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.V. Bona, 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.