Citation Nr: 21068204 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 09-18 973 DATE: November 9, 2021 REMANDED Entitlement to service connection for a sleep disorder is remanded. REASONS FOR REMAND In August 2021, the Board of Veterans' Appeals (Board) remanded this matter to ensure the Veteran is afforded due process. The record, at that time, reflected a post-remand, June 2021 supplemental statement of the case (SSOC) was not sent to the Veteran's representative's correct address and was returned undeliverable. The Board notes it had previously remanded the issue of service connection for a sleep disorder in July 2020 as being inextricably intertwined with other pending service connection claims due to the Veteran's assertion that his sleep disorder was secondary to other claimed disabilities. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The Board's July 2020 remand directives advised the Agency of Original Jurisdiction (AOJ) to take any additional development steps deemed necessary regarding the issue of service connection for a sleep disorder after adjudicating the other pending claims, to include, but not limited to, potentially obtaining a secondary service connection opinion should service connection be deemed warranted for any of the primary disabilities upon which the secondary claim is based. As discussed in the post-remand, June 2021 SSOC, which was updated and resent to the Veteran and his representative in September 2021, the AOJ obtained a secondary service connection opinion in April 2021 regarding the sleep disorder claim. Unfortunately, the Board finds the April 2021 opinion is inadequate to make an informed decision on the Veteran's claim. Although the Veteran's initial May 2013 informal service connection claim for a sleep disorder asserted the claimed disability is possibly secondary to his now service-connected psychiatric disability, subsequent arguments submitted by the Veteran's representative do not limit the secondary service connection theory solely to the now service-connected psychiatric disability but rather encompass all the Veteran's service-connected disabilities. The Board notes the AOJ granted service connection for numerous disabilities subsequent to the July 2020 remand, to include, but not limited to, acid reflux, degenerative arthritis of the thoracolumbar spine with radiculopathy affecting the lower extremities, and degenerative arthritis of the cervical spine with radiculopathy affecting the upper extremities; however, the effects of these disabilities were not considered in the June 2021 secondary service connection opinion even though, as previously noted, the most recent arguments submitted by the Veteran's representative encompassed these disabilities. Further, the sole rationale the April 2021 VA examiner provided regarding potential aggravation by the Veteran's service-connected psychiatric disability is based on the timing of the Veteran's diagnoses for a mental health disorder and sleep apnea. The Court of Appeals for Veterans Claims has cautioned against such temporal considerations, such as the date of diagnosis, in the context of secondary service claims, which the Board finds of particular importance in this case given the Veteran's consistent lay reports of interrupted sleep dating back several years prior to his sleep apnea diagnosis after an April 2021 sleep study scheduled in conjunction with his service connection claim for a sleep disorder. See, e.g., Frost v. Shulkin, 29 Vet. App. 131 (2017). In sum, the Board finds a new opinion is necessary to ensure the decision on the Veteran's claim is fully informed. The matter is REMANDED for the following action: Schedule the Veteran for a new examination to obtain an opinion regarding his service connection claim for a sleep disorder. The selected examiner must provide an opinion addressing whether the Veteran has a sleep disorder, to include, but not limited to, sleep apnea, that is at least as likely as not (50 percent probability or greater) proximately due to, or aggravated by, a service-connected disability or disabilities. The opinion must explicitly address both causation and aggravation to be deemed adequate. The examiner is advised aggravation means an increase in the severity of the underlying disability beyond its natural progression. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. In the context of the opinion, the examiner is asked to address the April 2021 VA examiner's assertion that obesity is a primary risk factor in the development of the Veteran's sleep apnea and answer the following three questions: 1) did any the Veteran's service-connected disabilities or a combination of service-connected disabilities cause the Veteran to become obese or aggravate the Veteran's obesity? 2) if a service-connected disability or disabilities caused the Veteran to become obese, or aggravated the Veteran's obesity, was the obesity as a result of the service-connected disability or disabilities a substantial factor in causing the sleep apnea? 3) and whether sleep apnea would not have occurred but for the obesity caused or aggravated by the Veteran's service-connected disability or disabilities? The examiner must explicitly acknowledge that the secondary service connection theory in the Veteran's case is not limited solely to consideration of obesity as an intermediate step to the development of sleep apnea; therefore, there must also be a discussion of whether there is a potential link between any of the Veteran's service-connected disabilities and sleep apnea, to include both consideration of causation and aggravation, as noted above. The examiner must also be advised 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. The examination report must include a complete rationale for the opinion provided. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. S. Kyle, 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.