Citation Nr: 21074147 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 17-67 643 DATE: December 14, 2021 REMANDED Entitlement to service connection for a sleep disorder, to include sleep apnea, is remanded. REASONS FOR REMAND The Veteran, who is the appellant in this case, served on active duty from June 1964 to July 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). By way of procedural background, in the January 2017 rating decision, in pertinent part, the RO denied the Veteran's claim for service connection for sleep apnea and his request to reopen a previously denied claim of service connection for sleep disturbance (also claimed as mental health conditions). In a May 2019 decision, in pertinent part, the Board denied the Veteran's claim for service connection for sleep apnea and his petition to reopen the claim for service connection for sleep disturbance. The Veteran timely appealed to the United States Court of Appeals for Veterans Claims (Court). In an August 2020 Joint Motion for Partial Remand (JMPR), the Veteran requested dismissal of the appeal seeking service connection for sleep disturbance. In an August 2020 Order, the Court granted the parties' August 2020 JMPR, vacated the Board's May 2019 decision insofar as it denied service connection for sleep apnea and headaches, and the petition to reopen a claim of service connection for bipolar disorder, and remanded the matters to the Board for further adjudication consistent with the terms of the JMPR. In a January 2021 decision, the Board reopened the Veteran's previously denied bipolar disorder claim, granted service connection for schizoaffective disorder (bipolar type), and granted service connection for headaches. The Veteran's sleep apnea claim was remanded for further development. In September 2021, the Board remanded the matter for additional development. The Board notes that the Veteran has been represented by a private attorney since February 2017. In March 2021, the Veteran's private attorney representative notified VA that he was no longer representing the Veteran. Because the attorney's attempt to withdraw was made following the original certification of the Veteran's appeal, the attorney is required to show good cause for his withdrawal. See 38 C.F.R. § 20.6(a)(2); Williams v. Wilkie, 32 Vet. App. 46, 52 (2019) (noting that "certification occurs only once and an appeal is recertified each time it returns to the Board"). Therefore, the Board continues to recognize the private attorney as the Veteran's representative. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.902(c) and 38 U.S.C. § 7107(b). 1. Entitlement to service connection for a sleep disorder, to include sleep apnea, is remanded. The Veteran asserts he is entitled to service connection for a sleep disorder, to include sleep apnea, and to include as secondary to his service-connected schizoaffective disorder. The Board finds that additional development is necessary prior to appellate review of this claim. In October 2021, an additional VA examination and medical opinion were obtained to determine the nature and likely etiology of the Veteran's claimed sleep disorder. On review, the Board finds the October 2021 VA medical opinion to be inadequate for the following reasons. First, while both causation and aggravation were addressed in the rationale provided for the medical opinion as to secondary causation, the October 2021 VA examiner only provided one opinion that the claimed condition was less likely than not proximately due to or the result of the Veteran's service-connected condition. Secondary causation and aggravation are independent concepts and, as such, the VA examiner must provide separate findings and rationales relating to causation and aggravation. On remand, the VA examiner should clearly, and separately, address both avenues for secondary service connection. Second, if no sleep disorder or sleep apnea was diagnosed, the October 2021 VA examiner was asked to opine as to why the Veteran's treatment records reflect his being prescribed a continuous positive airway pressure (CPAP) machine. No diagnosis of a sleep disorder or sleep apnea was noted in the October 2021 VA examination report. Accordingly, the VA examiner opined, "It would be pure speculation for me to comment on why he is being prescribed a CPAP. Sleep study clearly notes normal AHI (apnea-hypopnea index). No OSA diagnosis was given." Although the examiner indicated that the opinion could not be provided without resort to speculation, the Board requires a more detailed rationale for this conclusion, to include a statement as to whether there is additional evidence that could enable an opinion to be provided, whether the inability to provide the opinion is based on the limits of medical knowledge, or whether it is due to the limits of the examiner's training and knowledge. Accordingly, the matter is REMANDED for the following actions: 1. Obtain an addendum VA medical opinion regarding the nature and etiology of the Veteran's claimed sleep disorder, to include sleep apnea, preferably from the examiner who conducted the October 2021 VA examination, if possible. If this is not possible, the opinion should be rendered by another appropriate examiner. The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the examiner. If another examination is indicated, one should be provided to the Veteran. After a thorough review of the claims file, the examiner is asked to respond to the following: (a) Provide an opinion as to whether the Veteran has a diagnosed sleep disorder, to include sleep apnea. (b) If a sleep disorder or sleep apnea IS NOT diagnosed, provide an opinion as to why the Veteran's records reflect his being prescribed a CPAP machine. ** If the requested opinion cannot be provided without resort to speculation, please clarify whether there is additional evidence that could enable an opinion to be provided, whether the inability to provide the opinion is based on the limits of medical knowledge, or whether it is due to the limits of the examiner's training and knowledge. (c) If a sleep disorder or sleep apnea IS diagnosed (separate from the chronic sleep impairment associated with the Veteran's service-connected schizoaffective disorder), the examiner is asked to provide opinions as to the following: i. Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's diagnosed sleep disorder or sleep apnea is proximately due to his service-connected schizoaffective disorder, to include his treatment for same. ii. Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's diagnosed sleep disorder or sleep apnea is aggravated by his service-connected schizoaffective disorder, to include his treatment for same. ** Any amount of aggravation is sufficient to establish secondary service connection; permanent aggravation/worsening of a non- service-connected disability is not required. See Ward & Neal v. Wilkie, 31 Vet. App. 233 (2019). ** Aggravation means an increase in disability any additional impairment of earning capacity of the Veteran's sleep disorder or sleep apnea. ** If aggravation is found, the examiner must attempt to establish a baseline of severity of the Veteran's sleep disorder or sleep apnea before aggravation by his service-connected schizoaffective disorder. The VA examiner must provide separate findings and rationales relating to causation and aggravation. 2. Then, after ensuring that the above-requested development has been substantially complied with, readjudicate the remanded claim. L. Chu Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. M. Gill, 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.