Citation Nr: 21072218 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 18-35 724 DATE: December 2, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea as secondary to service-connected allergic rhinitis and/or asthma is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1979 to February 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2021, the Veteran presented testimony before the undersigned Veterans Law Judge. A transcript will be associated with the record. The Board acknowledges the Veteran's contention that her obstructive sleep apnea may also be related to a deviated septum, for which she is not service-connected. The United States Court of Appeals for Veterans Claims (Court) recently held VA must consider claims reasonably raised during VA's consideration of the proper evaluation of a service-connected disability. Bailey v. Wilkie, 33 Vet. App. 188 (2021). However, as the issue herein is one for service connection, not an increased evaluation, the Board has no authority to assume jurisdiction over whether service connection is warranted for a deviated septum. The Board may not adjudicate this claim in the first instance. Entitlement to service connection for obstructive sleep apnea as secondary to service-connected allergic rhinitis and/or asthma is remanded. The claim must be remanded for addendum medical opinions and VA treatment records. When VA undertakes to obtain an opinion, it must ensure that it is an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Moreover, as to claims for secondary service connection, the Court has held causation and aggravation are independent concepts and thus require separate findings and rationales. Atencio v. O'Rourke, 30 Vet. App. 74 (2018). Here, the Veteran was provided a VA examination on the etiology of her sleep apnea in September 2017. The examiner opined and rationalized the Veteran's sleep apnea was less likely than not caused by her allergic rhinitis. However, the examiner did not attempt an opinion on aggravation, noting such an opinion would require the expertise of an ear, nose, and throat (ENT) specialist. As such, the Veteran was not provided an adequate VA opinion on whether her sleep apnea is or has been aggravated by her service-connected allergic rhinitis, and this opinion must be obtained on remand. Significantly, the Veteran recently submitted medical literature indicating a link between the development of obstructive sleep apnea and asthma, for which the Veteran is also service-connected. On remand, this contention should also be addressed by the examiner. Lastly, the Veteran reported recent treatment at a VA facility at her November 2021 Board hearing. However, the most recent VA treatment records in the Veteran's record are from September 2017. Outstanding VA treatment records must also be obtained on remand. The matter is REMANDED for the following actions: 1. Obtain any outstanding VA treatment records from September 2017 to the present. All efforts to obtain these records must be documented in the claims file. 2. Obtain an addendum opinion from a qualified ear, nose, and throat specialist on the etiology of the Veteran's obstructive sleep apnea. The claims file must be made available to the examiner for review and the examination report must reflect a review was accomplished. An in-person examination is left to the examiner's discretion. After review of the record, the examiner is asked to address the following: (a) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's obstructive sleep apnea has been aggravated by her service-connected allergic rhinitis; and, (b) Whether it is at least as likely as not that the Veteran's obstructive sleep apnea was (i) proximately due to or (ii) aggravated by the Veteran's service-connected asthma. The examiner is reminded causation and aggravation are independent concepts and should have separate findings and rationales. Atencio v. O'Rourke, 30 Vet. App. 74 (2018). The examiner is advised that aggravation under 38 C.F.R. §3.310 (b) does not require that there be "permanent" worsening of the nonservice connected disability. In rendering these opinions, the examiner is asked to address the Veteran-submitted literature received by VA on November 23, 2021 indicating a possible link between allergic rhinitis and obstructive sleep apnea, as well as asthma and obstructive sleep apnea. A complete rationale with clear conclusions, supporting data, and a reasoned medical explanation connecting the two must be provided for any opinion expressed. 3. Then, readjudicate the claim on appeal. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.A. Infante, 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.