Citation Nr: 21071970
Decision Date: 12/01/21	Archive Date: 12/01/21

DOCKET NO. 18-51 588
DATE: December 1, 2021

REMANDED

Service connection for obstructive sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded.

REASONS FOR REMAND

The Veteran served on active duty from January 1964 to January 1966 in the United States Navy.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office.

Service connection for obstructive sleep apnea, to include as secondary to service-connected PTSD, is remanded.

In September 2020, the Board remanded the appeal for further development, and in a February 2021 decision, the Board denied claim.  The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court).  

In September 2021, the Court vacated the February 2021 Board decision and remanded the matter for development consistent with the parties' Joint Motion for Remand (Joint Motion).  In doing so, the parties found that an October 2020 VA examination report, on which the Board had relied, was inadequate because the examiner did not provide a clear rationale for finding that the Veteran's sleep apnea was not aggravated by his service-connected PTSD.  Rather, the rationale provided pertained only to the matter of why PTSD does not cause sleep apnea.

Secondary service connection, under 38 C.F.R. § 3.310, may be established for a nonservice-connected disability which is caused by or aggravated by a service-connected disability.  When VA provides an examination, it must ensure that it is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Given the findings of the parties in the September 2021 Joint Motion, a further opinion must be obtained.  

The matter is REMANDED for the following action:

Provide the Veteran's electronic claims file to the October 2020 VA sleep apnea examiner, or if not available, to another appropriately qualified examiner, for an addendum opinion.  Unless determined otherwise by the VA examiner, an actual examination of the Veteran is not required.  

While a medical opinion is required, the examiner is asked to consider the Veteran's lay reports and may state whether they are medically-consistent or medically-inconsistent with other evidence of record.  

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Opine on whether it is at least as likely as not that the current obstructive sleep apnea has been (i.) caused, OR (ii.) AGGRAVATED (i.e., worsened) by the Veteran's service-connected posttraumatic stress disorder.  Please provide a clear rationale to support your findings on the matter of aggravation, separate and apart from the rationale pertaining to causation.

 

 

M. Tenner

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Smith, 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.