Citation Nr: 21070931 Decision Date: 11/27/21 Archive Date: 11/27/21 DOCKET NO. 17-67 282 DATE: November 27, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA), to include as due to herbicide agent exposure or as secondary to service-connected type 2 diabetes mellitus and/or posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from July 1964 to July 1968. This matter is on appeal from an October 2016 rating decision. In his December 2017 substantive appeal, the Veteran requested a hearing before the Board. However, the Veteran later withdrew his hearing request in a March 2020 statement. Accordingly, the Veteran's hearing request is deemed withdrawn. 38 C.F.R. § 20.704 (e). In July 2021, this matter was remanded by the Board for a VA examination and opinion as to whether the Veteran's OSA was proximately due to or aggravated by his service-connected type 2 diabetes mellitus and/or his PTSD, and/or due to herbicide agent exposure. Pursuant to the Board's remand, on July 2021 VA sleep apnea Disability Benefits Questionnaire examination the examiner diagnosed obstructive sleep apnea since June 2005. In July 2021 the VA medical examiner opined that the Veteran's OSA is not proximately due to or the result of service-connected type 2 diabetes mellitus. The rationale was that there is no medical evidence that his sleep apnea is due to, the result of, or was permanently aggravated by his diabetes mellitus. Regarding whether the Veteran's OSA was incurred in or was causally related to his service, including herbicide agent exposure, the examiner opined that it was not proximately due to or the result of the Veteran's service-connected disability. The rationale was that there is no medical evidence that the Veteran's sleep apnea is due to, the result of, or was permanently aggravated by his conceded exposure to herbicides. The examiner further opined that the claimed OSA is less likely than not proximately due to or the result of his service-connected disability, based on the rationale that there was no medical evidence that his sleep apnea is due to, the result of, or was permanently aggravated by his service-connected disabilities. However, the examiner appears to have combined the issue of causation and aggravation. Notably, the United States Court of Appeals for Veterans Claims (Court) has held that secondary service connection opinions require separate findings and rationales for causation and aggravation, as they are independent concepts. El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013); see also Ward v. Wilkie, 31 Vet. App. 233, 241-42 (2019) (holding that "permanent worsening" of the claimed disability is not required to establish secondary service connection). Here, at best, the examiner only attempted a rationale towards the causative prong of this question. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a mere conclusion by a medical examiner is insufficient to allow the Board to make an informed decision). In addition, the examiner failed to provide an adequate opinion as to whether the Veteran's OSA is related to herbicide agent exposure. Accordingly, in light of the foregoing, and due to the inadequacies in the July 2021 addendum opinion, the Board must remand the claim for an addendum as to whether the Veteran's OSA is related to his service, including herbicide agent exposure, or to his service-connected disabilities. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matter is REMANDED for the following action: Obtain an appropriate addendum by an examiner, other than the July 2021 VA examiner, regarding the nature and etiology of the Veteran's claimed OSA. Unless the examiner finds that a new examination is required, the Veteran need not be examined again. The claims file, including a copy of this remand, must be made available to the examiner for review who should indicate that the claims file was reviewed. The examiner should provide the following opinion(s): a) Is it at least as likely as not (50 percent or more probability) that the Veteran's OSA had its onset in or is etiologically-related to the Veteran's active duty service, to include herbicide agent exposure? b) Is it at least as likely as not (50 percent probability or more) that the Veteran's OSA is (a) proximately due to or the result of the Veteran's service-connected disabilities, to specifically include PTSD and/or type 2 diabetes mellitus, or (b) aggravated (any incremental increase in the OSA beyond its normal progression) by his service-connected disabilities, to specifically include PTSD and/or type 2 diabetes mellitus? If it is determined that the OSA is related to a service-connected disability, to the extent possible, the examiner should indicate the approximate degree of disability or baseline before the onset of aggravation. The examiner is asked to consider and discuss as necessary the pertinent evidence of record to include the Veteran's lay statements, including those made to medical providers, and November 2021 Brief and cited treatise evidence and articles which establish a correlation between sleep apnea, PTSD, and diabetes mellitus. The Board, by this remand, makes no determination, expressed or implied, concerning the credibility of any statements on file. The addendum should include the complete rationale for all opinions expressed. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Adams, 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.