Citation Nr: 21076847 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 08-11 720 DATE: December 28, 2021 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities is remanded. Entitlement to a disability rating in excess of 20 percent for service-connected right ankle sprain residuals is remanded. REASONS FOR REMAND The Veteran served ona active duty from December 1980 to January 1983. The claim has been before the Board multiple times, most recently in May 2021 when it was remanded for additional development. There has not been substantial compliance with the remand directives and the claims must be remanded again. Stegall v. West, 11 Vet. App. 268 (1998) 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities. The claim must be remanded again because the October 2021 VA opinion obtained on remand is inadequate as to secondary service connection. The rationale for both the causation and aggravation opinions were the same; based solely on the examiner's observation that there was no medical literature to support a causal connection between any of the Veteran's service-connected disabilities and the development of sleep apnea and the conditions were completely separate. The examiner did not explain why the lack of evidence that supports a connection precludes the possibility of any association. The examiner did not address the Board's specific directive to address an August 2019 VA opinion that referred to medical research that addresses a relationship between sleep apnea and depression. The opinion is further inadequate because the examiner used the incorrect standard for secondary aggravation, despite the Board's directives clarifying the correct standard. 2. Entitlement to a disability rating in excess of 20 percent for service-connected right ankle sprain residuals. The claim must be remanded again because the October 2021 VA ankle examination did not adequately respond to the Board's previous remand directives. Specifically, the Board sought clarification whether the Veteran's right ankle symptoms manifested to a degree approximating ankylosis. The examiner was specifically directed to discuss the January 2016 VA examination, noting that the Veteran's right ankle did not come to a neutral position and he was unable to stand erect due to limited ankle motion. The October 2021 opinion merely refers to the accompanying examination. While this examination found no ankylosis of the right ankle, it also makes no finding with respect to whether the evidence from January 2016 approximates ankylosis, nor does it address the Veteran's claim that his ankle will "lock" included in the October 2021 examination. Therefore, the Board finds that further opinion is necessary to determine whether the Veteran's right ankle manifests with symptoms approximating ankylosis. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's sleep apnea is at least as likely as not (i) proximately due to or (ii) aggravated by (defined as any increase in disability) service-connected disability, specifically major depressive disorder. In answering this question, the examiner must specifically discuss the August 2019 VA opinion which acknowledged medical research associating a relationship between depression and obstructive sleep apnea. A complete rationale must be provided for all opinions. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge; the examiner's own expertise, or; whether additional facts are required and note what, if any, additional evidence would permit such an opinion to be made. 2. Schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) of the current severity of his right ankle disability. Copies of all pertinent records must be made available to the examiner for review. The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups throughout the entire period on appeal. To the extent possible, the examiner should identify any symptoms and functional impairments due to his right ankle disability alone and discuss the effect of the right ankle disability alone on any occupational functioning and activities of daily living. The examiner should identify if the functional limitation of the Veteran's right ankle disability more nearly approximates ankylosis at any point during the period on appeal. In answering this question, the examiner should specifically discuss the notation on January 2016 VA examination that the Veteran's right ankle did not come to a neutral position and he was unable to stand erect due to limited ankle motion. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. 3. Confirm that the VA medical opinion provided comports with this remand, specifically that the standard for the secondary aggravation opinion is any increase in disability, not the standard of beyond the natural progression as noted on the examination form itself. If not, get an addendum. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.S. McLeod 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.