Citation Nr: 21072772 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 15-43 133 DATE: December 6, 2021 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected traumatic brain injury (TBI) and posttraumatic stress disorder (PTSD) with depressive, anxious, and psychotic features, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1976 to November 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision. A hearing was held before the undersigned Veterans Law Judge in March 2019. A transcript of the proceeding has been associated with the record. The Board remanded the case for further development in September 2019 and March 2020. The case has since been returned to the Board for appellate review. Upon review, the Board finds that additional development is needed prior to final adjudication of the issue on appeal. A December 2019 VA examiner opined that the Veteran's obstructive sleep apnea is not proximately due to or a result of his service-connected TBI. He cited to the work of a nationally recognized sleep expert, who has indicated that the type of sleep apnea that would result from a TBI with chronic headaches is central apnea. The examiner noted that the Veteran's May 2014 sleep study indicated that there were no central apneas, and therefore, found that the Veteran's sleep apnea cannot be attributed to or aggravated by his TBI. However, the examiner did not provide a specific rationale for why sleep apnea was not aggravated by the Veteran's service-connected TBI, and it instead appears that both causation and aggravation were considered together rather than as separate concepts. See El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013); Atencio v. O'Rourke, 30 Vet. App. 74 (2018) (finding a medical opinion inadequate because it did not address aggravation and causation separately with rationale specific to those findings). Therefore, an additional medical opinion is needed in order to ensure compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). The matters are REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for obstructive sleep apnea that are not already of record. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also request any outstanding VA treatment records. 2. After completing the foregoing development, the AOJ should refer the Veteran's claims file to a VA examiner for a medical opinion as to the nature and etiology of his obstructive sleep apnea. A physical examination is only needed if deemed necessary by the VA examiner. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's obstructive sleep apnea was either caused or aggravated by his service-connected TBI with chronic headaches or PTSD with depressive, anxious, and psychotic features, to include any medications used to treat those disabilities. In rendering his or her opinion, the examiner should address both the causation and aggravation questions in his or her rationale. In other words, even if the Veteran's service-connected conditions did not cause his current obstructive sleep apnea, the examiner should still address whether his service-connected disabilities could have worsened his obstructive sleep apnea. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion as it is to find against it). A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. The AOJ should ensure compliance with the prior directives and conduct any other development as may be indicated. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. DeVerter, 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.