Citation Nr: 21069468 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 17-39 645 DATE: November 18, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1999 to September 2005. In July 2020, the Board of Veterans' Appeals (Board) remanded the matter on appeal for additional evidentiary development. Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. In October 2020, the Veteran underwent a VA examination regarding his claimed obstructive sleep apnea. The examiner reviewed the claims file and provided a clinical evaluation of the Veteran prior to finding that the Veteran's obstructive sleep apnea was less likely than not proximately due to or the result of service. He reasoned that the Veteran had not been diagnosed with the disability during service. The Board finds that this opinion is inadequate because it is improperly based solely on the lack of in-service documentation or treatment records relevant to the claim. First, a lack of in-service evidence of complaints of a disability is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Second, the examiner did not consider the Veteran's lay statements concerning his snoring, gasping for air, and daytime somnolence during and after service as possible symptoms of obstructive sleep apnea. Miller v. Wilkie, 32 Vet. App. 249 (2020) (explaining that a VA examination is inadequate if the examiner does not consider lay evidence). Thus, on remand an addendum opinion concerning direct service connection must be obtained. The examiner also proffered secondary medical opinions concerning whether the Veteran's claimed obstructive sleep apnea is etiologically related to his service-connected acquired psychiatric disability or to his service-connected cervical spine disability. The Board finds that the secondary opinion concerning a possible etiological relationship between the Veteran's obstructive sleep apnea and his service-connected cervical spine disability is inadequate. While the examiner cited medical literature that noted that certain cervical spine disabilities pre-disposed select individuals to sleep apnea, he summarily found that there was no conclusive evidence to support this theory. The Board finds that this is not only internally inconsistent but is conclusory; the examiner does not explain why the Veteran does not fit the population of individuals with cervical spine disabilities who are pre-disposed to sleep apnea. On remand, an addendum opinion must be obtained. Further, the examiner did not address the aggravation prong of secondary service connection regarding either the Veteran's service-connected acquired psychiatric disability or to his service-connected cervical spine disability. See El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (indicating that findings of "not due to," "not caused by," and "not related to" a service-connected disability are insufficient to address the question of aggravation under 38 C.F.R. § 3.310 (b)). Thus, on remand addendum opinions regarding aggravation must be obtained. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding: (a.) Whether the Veteran's obstructive sleep apnea is at least as likely as not related to his active duty service. The examiner is reminded that a lack of in-service evidence of complaints of a disability is not always fatal to a service connection claim. He or she is asked to adequately consider all medical treatise evidence submitted by the Veteran and his representative, as well as the Veteran's lay statements concerning snoring, gasping for air, and daytime somnolence during and after service. (b.) Whether the Veteran's obstructive sleep apnea is proximately due to his service-connected cervical spine disability. (c.) Whether the Veteran's obstructive sleep apnea is aggravated beyond its natural progression by his service-connected acquired psychiatric disability, which now includes insomnia, and/or by his service-connected cervical spine disability. Any opinion expressed should be accompanied by supporting rationale. 2. After completing the above action, and any other development deemed necessary, the claim must be readjudicated. If the Veteran's claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an opportunity to respond, the appeal must be returned to the Board for appellate review. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Bush 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.