Citation Nr: 21070787 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 18-30 769 DATE: November 26, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea, including as secondary to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran had active duty service from January 1996 to January 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for sleep apnea. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in February 2021. A copy of the transcript has been reviewed and associated with the claims file. Entitlement to service connection for obstructive sleep apnea, including as secondary to service-connected disabilities, is remanded. The Veteran has been diagnosed with obstructive sleep apnea (OSA) and asserts it was incurred in and/or secondary to his service-connected lumbar spine disability and/or depression. The Veteran underwent a VA examination in December 2017, at which time the examiner concluded that the Veteran's OSA was less likely than not proximately due to his service-connected lumbar spine disability given that medical literature does not show that a back disability can cause sleep apnea. A VA medical opinion was issued in March 2018, at which time the examiner concluded that the Veteran's OSA clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated beyond its natural progression. The Veteran submitted a medical opinion in February 2021 by J.M., M.D. Dr. J.M. concluded that the Veteran's sleep apnea was aggravated by his depression. After a review of the evidence, the Board finds that the medical opinions of record are insufficient to determine the present claim. In this regard, the December 2017 examiner failed to provide an opinion regarding whether the Veteran's OSA was directly related to service, aggravated by his lumbar spine disability, or caused and/or aggravated by his service-connected depression. The March 2018 medical opinion is contrary to the evidence of record, which indicates that the Veteran's OSA did not exist at the time of entry into service. Lastly, the February 2021 medical opinion failed to provide the baseline severity of the Veteran's OSA prior to aggravation as required by VA regulations. See 38 C.F.R. § 3.310(b). Accordingly, the Board finds that a new medical opinion is warranted on remand. The matter is REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran's updated VA treatment records from October 2017 to the present. 2. After completion of #1, forward the claims file, including a copy of this remand, to an ENT specialist and/or somnologist for a medical opinion to determine the etiology of the Veteran's OSA. A VA examination is only necessary if deemed so by the examiner. The claims file, including a copy of this remand, must be reviewed and such review should be noted in the examination report. The examiner should respond to the following: A. Is it at least as likely as not (probability of at least 50 percent) that the Veteran's OSA had its onset in and/or is otherwise etiologically related to his period of active service? B. If not directly related, is it at least as likely as not (probability of at least 50 percent) that the Veteran's OSA was caused and/or aggravated (any incremental increase in disability) by his service-connected depression and/or lumbar spine disability, including any associated pain? If aggravation is found, is there medical evidence created prior to aggravation or between the aggravation and current level of disability that shows a baseline of the OSA prior to aggravation? The examiner must provide a comprehensive rationale for each opinion provided. Specifically, the examiner should review and discuss the medical literature submitted by the Veteran, February 2021 hearing testimony, October 2017 and January 2018 statements, and February 2021 medical opinion by J.M., M.D. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Merrick 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.