Citation Nr: 21077603 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 14-04 411 DATE: December 30, 2021 REMANDED Service connection for obstructive sleep apnea (OSA) is remanded. REASONS FOR REMAND In September 2019, the Board denied service connection for OSA and the Veteran appealed the decision to the Veterans Claims Court. In a December 2020 Memorandum Decision, the Court set aside the Board's decision and remanded the case to the Board for further consideration consistent with the Memorandum Decision. Pursuant to the December 2020 Memorandum Decision, the July 2018 VA medical opinion was found to be inadequate to use for adjudication the claim for OSA. Specifically, it was found the examiner relied on a lack of objective documentation of symptoms consistent with OSA prior to April 2008 to make the etiology determination. Most recently in September 2021, the Board remanded this claim for an addendum opinion as to etiology on a direct service connection theory of entitlement and a secondary service connection theory of entitlement. The Board specifically requested the examiner to address the Veteran's lay statements and other lay witnesses' statements as to symptoms they witnessed, particularly while the Veteran was in service. While the post-remand opinion summarily notes, "[l]ay and physician statements are accepted on their face," the opinion relies heavily on the Veteran's statements as to experiencing inservice snoring. The opinion rationalizes that "not everyone who snores has sleep apnea." However, this does not address the lay statements of record which also listed symptomatology of episodes of stopped breathing, daytime somnolence (sleepiness). and fatigue during service. Notably, the medical evidence cited in the opinion addresses other symptoms of sleep apnea, but not those reported in the lay testimony of record. As this does not comply with the Board's prior remand directive, a remand for an addendum opinion is needed. Stegall v. West, 11 Vet. App. 268 (1998) (Board remand confers a right on a claimant to compliance with the remand order). Moreover, the post-remand opinion did not provide an opinion as for aggravation as to the secondary service connected theory of entitlement. As this does not comply with the Board's prior remand, a remand is also needed for this previously requested development. Id. Additionally, the Board requested that the RO give the Veteran's private physician an opportunity to provide an addendum opinion to the August 2018 private medical opinion as it did not indicate a review of the Veteran's inservice medical records. This development was not done. Accordingly, a remand is also needed so that the private clinician is given an opportunity to provide the requested addendum opinion. Id. The matters are REMANDED for the following action: 1. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. 2. Inform the Veteran that he has the opportunity for the private clinician, Dr. Kesler, who provided the August 2018 nexus opinion to provide an addendum medical opinion and a review of the Veteran's service treatment records. 3. Send the claims file to an appropriately qualified clinician for an addendum opinion. The clinician is asked to address the following, based on the pertinent lay statements and medical evidence: (a.) Is it at least as likely as not (probability of 50 percent or greater) that symptoms in service, to include snoring, daytime sleepiness, impaired concentration and mood and/or morning headaches, represented the onset of OSA, which was not diagnosed until a later date? (b.) Is it at likely as not (probability of 50 percent or greater) that OSA was aggravated (i.e., worsened) beyond the natural progression by sinus and upper respiratory infections, to include service-connected disabilities of bronchiectasis and allergic rhinitis? If the clinician is of the opinion that OSA was aggravated by a service-connected disability, the clinician should identify the baseline level of OSA and the degree of disability due to aggravation. In providing these opinions, the clinician should directly address the lay reports of symptomatology since service, including snoring, daytime sleepiness, impaired concentration and mood, morning headaches, and witnessing breathing pauses during sleep observed by partner. Moreover, address the evidence which notes the Veteran's symptoms ceased once he was given a CPAP machine, including improved mood. The opinion should also address the submitted internet articles, including the article received in January 2012 discussing the effect of sinus infection on sleep apnea. The clinician is also requested to consider the testimony of the Veteran and the buddy statements regarding the onset and continuity of symptomatology since service. A complete rationale should be given for all opinions and conclusions expressed. If the clinician determines that an examination is necessary in order to provide the requested opinions, then one should be scheduled. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Wade 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.