Citation Nr: 21074863 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 16-40 379 DATE: December 16, 2021 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to the service-connected posttraumatic stress disorder (PTSD) or traumatic brain injury (TBI), is remanded. REASONS FOR REMAND The Veteran, who is the appellant in this case, served on active duty from June 1981 to June 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). By way of procedural background, the Board denied entitlement to service connection for sleep apnea in a November 2018 decision. The Veteran timely appealed to the United States Court of Appeals for Veterans Claims (Court) which, by way of an October 2019 Order, granted the parties' October 2019 Joint Motion for Partial Remand (JMPR), vacated the Board's November 2018 decision, and remanded the matter to the Board for further adjudication consistent with the terms of the JMPR. In decisions dated April 2020, December 2020, and August 2021, the Board remanded the matter for additional development. The Board acknowledges that the Veteran has expressed a desire to change his representation by Disabled American Veterans (DAV). See August 2021 Correspondence. In August 2021, VA provided the Veteran a VA Form 21-22 and instructions on how to change his representation. See August 2021 Subsequent Development Letter. In October 2021, the Veteran submitted a VA 21-22 attempting to appoint Veterans of Foreign Wars (VFW) as his representative; however, the form was not signed by a Veterans Service Organization (VSO) representative and was therefore invalid. In November 2021, the Board notified the Veteran that the October 2021 VA Form 21-22 was invalid and provided the Veteran another opportunity to properly change his representation within 30 days of the date of the letter. See November 2021 BVA Letter. As more than 30 days has elapsed since the date of the November 2021 letter without any response from the Veteran, the Board will assume the Veteran wishes to remain represented by DAV and will proceed with its review of this appeal. The Board observes that the Veteran submitted a lay statement after the RO's adjudication in an August 2021 Supplemental Statement of the Case (SSOC), without a waiver of initial RO consideration. See Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide that if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests agency of original jurisdiction (AOJ) consideration). Entitlement to service connection for sleep apnea, to include as secondary to the service-connected PTSD or TBI, is remanded. The Veteran asserts he is entitled to service connection for sleep apnea, to include as secondary to his service-connected PTSD or TBI. The Board regrettably finds that another remand is necessary to obtain an adequate medical opinion and to ensure substantial compliance with its previous remand directives. Stegall v. West, 11 Vet. App. 268 (1998); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In August 2021, an additional VA medical opinion was obtained as to the likely etiology of the Veteran's sleep apnea. The Board finds the August 2021 VA medical opinion to be inadequate for the following reasons. First, the August 2021 VA examiner only provided opinions as to direct service connection and secondary causation, although the theory of secondary aggravation was addressed in the rationale for both opinions. In its previously remand directives, the Board specifically requested opinions as to direct service connection, secondary causation, and secondary aggravation. On remand, the VA examiner should clearly, and separately, address all applicable theories of entitlement to service connection for sleep apnea. Second, in the rationale for the medical opinions, the August 2021 VA examiner applied the incorrect standard for secondary aggravation (i.e., permanent aggravation). The Board emphasizes that any amount of aggravation is sufficient to establish secondary service connection, and that permanent aggravation or worsening of a non-service-connected disability is not required. See Ward & Neal v. Wilkie, 31 Vet. App. 233 (2019). On remand, the VA examiner should ensure to apply the correct standard when providing an opinion as to secondary aggravation. 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 sleep apnea. 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 provide an opinion as to the following: (a) Whether the Veteran's sleep apnea at least as likely as not (50 percent probability or greater) had its onset during active service or is otherwise related to it. ** Specifically, address the Veteran's contention that his sleeping problems began after a blast occurred during active service in 1983. (b) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's sleep apnea is proximately due to his service-connected PTSD and/or TBI, to include his treatment for either of those disabilities. (c) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's sleep apnea is aggravated by his service-connected PTSD and/or TBI, to include his treatment for either of those disabilities. ** 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 disabilityany additional impairment of earning capacityof the Veteran's sleep apnea. ** If aggravation is found, the examiner must attempt to establish a baseline level of severity of sleep apnea before aggravation by the service-connected PTSD or TBI. The VA examiner must provide separate findings and rationales relating to causation and aggravation. A complete rationale must be provided for all opinions rendered. 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.