Citation Nr: 21075661 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 17-22 938 DATE: December 21, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1968 to November 1976. This matter is on appeal from a July 2014 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, a hearing was held before the undersigned. A transcript of the hearing is in the record. The case was previously before the Board in March 2021 when it was remanded for further development. A June 2021 rating decision awarded service connection for a bladder condition, for chronic obstructive pulmonary disease, for erectile dysfunction, and for a left-hand tremor. As these awards of service connection represent full grants of the service connection matters that were previously on appeal, the matters have been resolved and will not be further addressed herein. In November 2021, the Veteran submitted a VA Form 20-0995, Supplemental Claim, for the matter seeking service connection for obstructive sleep apnea, attempting to opt-in to the Appeals Modernization Act (AMA) system. A claimant has 60 days from the date of a supplemental statement of the case (SSOC) or one year from the date of an initial decision to opt-in to the AMA. 38 C.F.R. § 19.2(d)(2), 19.52. In this case, the Agency of Original Jurisdiction issued the SSOC on June 9, 2021, so the Veteran had until August 8, 2021 to opt-in to the AMA, or August 9, 2021, since August 8th was a Sunday. VA received his VA Form 0995 on November 2, 2021, which is several months after the August deadline and several years since the July 2014 initial decision, so his opt-in was not timely received. Additionally, policy guidance followed by the AOJ indicates that the AOJ will only accept an opt-in to AMA after an SSOC if a claimant checks the "opt-in from SOC/SSOC" box or includes a letter requesting withdrawal of the legacy appeal. The Veteran did not complete either of these actions. Therefore, as the VA Form 0995 was not a valid opt-in to the AMA, the Board will proceed with the appeal under the legacy system. Entitlement to service connection for sleep apnea is remanded. The Veteran contends that he is entitled to service connection for obstructive sleep apnea (OSA). However, an addendum opinion must be obtained to ensure that the VA examiner has applied the benefit of the doubt standard. In June 2021, the Veteran was provided with a VA examination in which the examiner opined that the Veteran's condition was not likely related to service and not likely caused or aggravated by his service-connected psychiatric disorder. However, the prior remand instructions requested an opinion as to whether it is "at least as likely as not" related to service or caused or aggravated by his service-connected psychiatric disorder, which is a lower standard than that applied by the examiner. This distinction is important because when there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Thus, this matter must be returned to the VA examiner to ensure that the clinician applied the correct standard and substantially complied with the prior remand directives. The Board acknowledges the October 2021 correspondence from Dr. S.F. in which she stated that untreated OSA can be associated with mood disturbance, sleep disturbance, cognitive deficits, and daytime sleepiness. She further stated that the use of a CPAP machine can indirectly improve mental health target symptoms. The Board notes that establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that it was either caused or aggravated by a service-connected disability. See 38 C.F.R. § 3.310(a), (b). However, this opinion by Dr. S.F. supports the contention that the Veteran's OSA aggravates his service-connected psychiatric disorder, not that the service-connected psychiatric disorder aggravates the OSA. Thus, this opinion, does not support that service connection on a secondary basis is warranted. The record also reflects the Veteran receives VA treatment; thus, updated VA treatment records should be associated with the claims file. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from September 2021 to the present. 2. After completing the development requested in item 1, return the claims file to the June 2021 VA examiner, or another appropriate clinician if that examiner is not available, for review and an addendum medical opinion. The reviewing clinician should be requested to provide opinions (based on a review of the record) to answer the following: (a.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's sleep apnea was incurred in service or is otherwise related to an in-service injury, event, or disease, to include presumed exposure to herbicide agents and exposure to fumes from burn pits in Vietnam? (b.) If the answer to (a.) is that it is less likely than not, then is it at least as likely as not (a 50 percent or greater probability) that the Veteran's sleep apnea is caused or aggravated (i.e., any worsening of the condition beyond its natural progression) by his service-connected acquired psychiatric disorder, diagnosed as latent type schizophrenia with psychogenic headaches? A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. H. White, 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.