Citation Nr: 21067963 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 19-37 905 DATE: November 8, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1965 to December 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was remanded by the Board in May 2021. The case has been returned to the Board at this time for further appellate review. Entitlement to service connection for OSA is remanded. Pursuant to the May 2021 Board remand, the Veteran was afforded a VA examination regarding his OSA in August 2021. The Board finds this VA examination to be inadequate for the following reasons. First, the Board directed that the VA examiner address whether the Veteran's obesity is a result of one of his service-connected disabilities. In addition, the VA examiner was directed to identify the likely cause of the Veteran's OSA. The August 2021 VA examiner did not address whether the Veteran's obesity is a result of his service-connected disabilities or the likely cause of the Veteran's OSA. Thus, the Board finds that the August 2021 VA examination does not substantially comply with the prior Board remand. See Stegall v. West, 11 Vet. App. 268 (1998). Second, in providing opinions regarding secondary service connection, the August 2021 VA examiner did not address aggravation. See 38 C.F.R. § 3.310; see also Atencio v. O'Rourke, 30 Vet. App. 74, 91 (2018) (causation and aggravation are independent concepts and should have separate findings and rationale); El-Amin v. Shinseki, 26 Vet. App. 136 (2013) (findings of "not due to," "not caused by" and "not related to" are insufficient to address the question of aggravation under 38 C.F.R. § 3.310 (b)). For these reasons, the Board finds that remand for a new VA opinion is warranted. This matter is REMANDED for the following action: Obtain an opinion with a qualified clinician to determine the nature and etiology of the Veteran's obstructive sleep apnea. If the selected clinician determines that an examination is necessary to respond to this request, such examination should be scheduled. Following review of the claims file, and examination of the Veteran if deemed necessary, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's obstructive sleep apnea began in or is otherwise caused by the Veteran's active service. The examiner should also opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's obstructive sleep apnea was (a) caused by; or (b) aggravated (i.e., worsened beyond the normal progression of the disease) by the Veteran's service-connected disabilities. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the Veteran's obstructive sleep apnea prior to aggravation by the service-connected disability or disabilities. Please note, causation and aggravation are separate concepts and must be addressed independently. Finally, the examiner should opine as to whether obesity represents an intermediate step between a service-connected disability or multiple service-connected disabilities and the Veteran's obstructive sleep apnea. In providing such opinion, the clinician should consider and discuss the symptomatology and limitations associated with the Veteran's service-connected conditions. In this regard, the examiner should respond to the following inquiries: (a) Whether the Veteran's service-connected disabilities, either individually or in combination, caused the veteran to become obese or aggravated the Veteran's obesity? (b) If so, whether such obesity was a substantial factor in causing his obstructive sleep apnea? (c) If so, whether the obstructive sleep apnea would not have occurred but for such obesity. In providing these opinions, the examiner should identify the likely cause of the Veteran's obstructive sleep apnea. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so, however, the Veteran's history of symptoms capable of lay observation cannot be dismissed solely on the basis that they are not recorded in contemporaneous treatment records. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Elias, 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.