Citation Nr: 21071541 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 15-35 321 DATE: November 30, 2021 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD) or diabetes mellitus, is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1968 to June 1970. He testified before a Veterans Law Judge in January 2021. The Veterans Law Judge who conducted that proceeding is no longer employed by the Board. A transcript of the hearing has been associated with the record. In an August 2021 response to Board correspondence regarding the earlier hearing, the appellant stated that he did not wish to appear at a new hearing. Hence, under 38 C.F.R. § 19.3(b), this appeal may be reassigned to another Veterans Law Judge for a decision. The matter was most recently remanded in February 2021. Unfortunately, there has not been substantial compliance with the prior remand directives and another remand is required. Stegall v. West, 11 Vet. App. 268 (1998). The claim must be remanded again because the medical opinions obtained on remand are inadequate. In an initial April 2021 opinion, the examiner provided a positive nexus for direct service connection, but did not include any rationale. In an addendum dated later that same month, the examiner provided a negative opinion. However, the rationale for the opinion is also inadequate because it is based on large part on a lack of documented complaints or treatment during service. The negative April 2021 opinion as to whether the sleep apnea is caused or aggravated by the Veteran's service-connected PTSD or diabetes is also inadequate. The examiner said there was no "definitive" medical literature regarding a connection between sleep apnea and PTSD or diabetes and added that the disability was already directly related to service. In keeping with the benefit of the doubt standard of proof, a medical principle need not reach scientific consensus (or be established by definitive studies) to adequately support a grant of VA benefits. Wise v. Shinseki, 26 Vet. App. 517 (2014). The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate VA examiner, other than the one who provided the April 2021 opinions, on the likely etiology of the Veteran's diagnosed sleep apnea. Copies of all pertinent records must be made available to the examiner for review. The examiner is asked to answer the following questions: (a) Is it at least as likely as not (50 percent probability) that any currently diagnosed sleep apnea was incurred in or is otherwise related to service? In answering this, the examiner must specifically comment on the Veteran's and his wife's statements regarding the onset and continuity of breathing disturbances and snoring during sleep since 1972. If the clinician finds that the onset of symptoms such as these in or shortly after service are not indicative of sleep apnea, the clinician must provide specific reasons for his/her determination (b) If (a) is answered no, is it at least as likely as not (probability of at least 50 percent) that the Veteran's sleep apnea is proximately due to (caused by) the Veteran's service-connected diabetes mellitus or PTSD? (c) If (b) is answered no, is it at least as likely as not (probability of at least 50 percent) that Veteran's sleep apnea disability has been aggravated by the Veteran's service-connected diabetes mellitus or PTSD? Aggravation here is defined as any increase in disability. The examiner must provide reasons for each opinion given. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner cannot rely on previous VA medical opinions for the basis of their own opinion. 2. Confirm that the VA medical opinion provided comports with this remand, specifically that the standard for the secondary aggravation opinion is any increase in disability, not the standard of beyond the natural progression as noted on the examination form itself. If not, get an addendum. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Jarman, 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.