Citation Nr: 21006324 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 13-29 193 DATE: February 3, 2021 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from November 1967 to October 1973 and from April 1974 to April 1977. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2020, the Veteran’s attorney submitted a letter indicating the cancellation of the authorization as power of attorney. However, the attorney signed the letter and it is not evident that the Veteran revoked representation himself. Under 38 C.F.R. § 20.6, a representative may withdraw services as representative in an appeal any time prior to certification of the appeal to the Board by complying with the requirements of 38 C.F.R. § 14.631. If attempting to withdraw after certification, “a representative may not withdraw services as representative in the appeal unless good cause is shown on motion.” See 38 C.F.R. § 20.6(a)(2). Here, the attorney has attempted to withdraw services after certification to the Board. The Board notes that an appeal is only certified to the Board once and that certification was completed in 2017. See Williams v. Wilkie, 32 Vet. App. 46 (2019) (noting that an appeal is certified to the Board only once, following receipt of the Substantive Appeal). A December 17, 2020, letter was sent to the Veteran’s attorney advising him that he was required to file a motion for withdrawal with the Board showing good cause. The letter stated that if a response was not received within 30 days of the date of the letter, the Board would assume that the attorney wished to remain the Veteran’s representative. The attorney has not responded. The Board finds that good cause has not been demonstrated for withdrawal and the Board will continue to recognize John S. Berry as the Veteran’s representative. In April 2018, the Board denied entitlement to service connection for sleep apnea, among other claims. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). The Court set aside the portion of the April 2018 Board decision that denied service connection for sleep apnea and remanded the matter for development. The Court determined that the Board erred by relying on an inadequate March 2016 VA examination. The Court found the examination inadequate as the examiner did not address the Veteran’s submitted medical literature concerning posttraumatic stress disorder (PTSD) and sleep apnea. In June 2020, the Board remanded the Veteran’s claim for a new VA medical opinion regarding the nature and etiology of the Veteran’s sleep apnea. The examiner was asked to address whether the Veteran’s sleep apnea was caused by active service and whether sleep apnea was proximately caused or aggravated by the Veteran’s service-connected disabilities. The Board’s remand also stated that the Veteran’s submission of medical literature regarding the relationship between PTSD and sleep apnea must be discussed by the examiner. In July 2020, a VA examiner provided an etiological opinion concerning the Veteran’s sleep apnea. The examiner opined that the Veteran’s sleep apnea was not caused by the Veteran’s service-connected conditions because there was a clear and known physical cause for obstructive sleep apnea. The examiner also stated that the Veteran was diagnosed with severe obstructive sleep apnea and opined that there was no evidence that the Veteran’s service-connected disabilities aggravated severe obstructive sleep apnea permanently beyond natural progression. In August 2020, the examiner provided an addendum opinion concerning secondary service connection and again opined that sleep apnea was not caused or aggravated by the service-connected conditions given the physical mechanism that causes obstructive sleep apnea. The examiner also opined that Tramadol and Gabapentin did not cause obstructive sleep apnea or aggravate it. The Board finds the VA examiner’s opinions inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The examiner did not address whether the Veteran’s sleep apnea was directly related to service as instructed by the Board’s June 2020 remand. In addition, when discussing secondary service connection, the examiner did not address the medical literature submitted by the Veteran concerning PTSD and sleep apnea. A new opinion is required. The matter is REMANDED for the following action: 1. Obtain an opinion from an appropriately qualified clinician to determine the nature and etiology of the Veteran’s sleep apnea. The claims file must be reviewed in conjunction with the examination. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. The clinician must address the following: a. Provide an opinion as to whether the Veteran’s currently diagnosed sleep apnea was at least as likely as not caused or aggravated by service. b. Provide an opinion as to whether the Veteran’s sleep apnea was at least as likely as not proximately due to or aggravated by a service-connected disability. The Veteran is currently service connected for PTSD; right lower extremity sciatica; left lower extremity sciatica; lumbar spine injury with degenerative disc disease; radiculopathy of the right upper extremity; radiculopathy of the left upper extremity; sinusitis; cervical degenerative joint disease; chronic constipation/gastroesophageal reflux disease; traumatic brain injury; right little finger fracture; laminectomy scar; bilateral inguinal herniorrhaphy scars; umbilical hernia; and erectile dysfunction. In providing the opinion regarding secondary service connection, the clinician must discuss the medications utilized in treatment for the service-connected disabilities, including Gabapentin and Tramadol. The clinician must also address the medical literature submitted by the Veteran in October 2013 concerning PTSD and sleep apnea; any updates to such literature should also be raised and discussed. A full and complete rationale for any opinion expressed is required. 2. Then, readjudicate the remanded issue. If the benefit sought remains denied, the Veteran and his attorney should be provided with a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Seay, 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.