Citation Nr: 21007353 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 14-21 977 DATE: February 9, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. REASONS FOR REMAND The Veteran had active military service from January 1982 to January 2000, with verified service in the Southwest Asia theater of operations. By way of history, this matter was previously adjudicated by the Board in an August 2019 decision, wherein service connection for obstructive sleep apnea was denied. Following the Veteran’s appeal of that denial, the United States Court of Appeals for Veterans Claims (Court) issued a June 2020 decision granting the parties’ Joint Motion for Remand (JMR), effectively vacating the Board’s August 2019 decision and remanding the matter to the Board for further development of the record. Upon receipt of the JMR, the Board in October 2020 further remanded the matter to the Agency of Original Jurisdiction (AOJ) to effectuate the requested development. Following the issuance of a November 2020 supplemental statement of the case that continued the denial of service connection, the case was returned to the Board for its adjudication. The Board remanded this matter under direction from the Court in order to obtain an addendum etiology opinion that addressed direct service connection for obstructive sleep apnea and instructed the chosen examiner to consider and comment upon lay testimony in the record that suggested that the Veteran was experiencing sleep apnea symptomatology while in service and continued to do so after his discharge from service. The Board remand specifically identified the Veteran’s testimony during the April 2017 hearing as well as lay statements prepared by the Veteran’s spouse and his daughter. In addition, the remand instructed the chosen examiner to set forth an opinion as to the potential nexus between sleep apnea and the Veteran’s service-connected disabilities, to specifically include posttraumatic stress disorder (PTSD). In setting forth this opinion, the examiner was directed to consider whether the obstructive sleep apnea was aggravated beyond its natural progression by a service-connected disability (as opposed to being permanently aggravated by a service-connected disability). In a November 2020 addendum opinion, a VA examiner once again found that it was less likely than not that the obstructive sleep apnea was incurred in or otherwise attributable to service. In support thereof, the examiner discussed the Veteran’s testimony during the April 2017 hearing as well as the Veteran’s wife’s statement but did not discuss the statement from the Veteran’s daughter. As for the query regarding secondary service connection, the VA examiner did utilize the proper standard for evaluating aggravation in determining that it was less likely than not that the obstructive sleep apnea was cause by or otherwise attributable to service. As the VA examiner did not discuss the lay statement from the Veteran’s daughter, the Board finds that remand is necessary in order to secure a second addendum opinion regarding direct service connection that does explicitly discuss this statement and whether it raises the suggestion that the Veteran’s obstructive sleep apnea manifested in service. In addition to this deficiency, the Board’s review of the claims file reflects that the Veteran has raised the alternative theory of entitlement to service connection for his obstructive sleep apnea as attributable to his exposure to hazardous chemical agents while serving in the Southwest Asia theater of operations. The Veteran has submitted copies of two letters that he received from the Office of the Assistant Secretary of Defense following cessation of his service in the Southwest Asia theater of operation, both of which indicate that the Veteran may have been exposed to chemical warfare agents while serving in the Gulf War. The Veteran also contended that he was exposed to hazardous fumes from burn pits while serving in the Gulf War. To date, no VA examiner has evaluated the likelihood of there being a nexus between these potential exposures and the Veteran’s development of obstructive sleep apnea, either in service or thereafter. On remand, the AOJ must secure such an opinion. The matter is REMANDED for the following action: Provide the claims file to the individual who prepared the November 2020 addendum opinion, or to another qualified medical professional if that individual is not available, for the purpose of eliciting a further addendum opinion responsive to the queries detailed below. The Veteran’s entire claims file, including a copy of this remand, must be made available to the examiner for review.  The VA examiner should confirm the claims file review.  Following review of the claims file, the examiner is requested to opine whether it is at least as likely as not (a 50 percent probability or greater) that obstructive sleep apnea is (a) directly related to active military service, or (b) caused or aggravated by the service-connected PTSD. In setting forth this opinion, the examiner is asked to specifically consider and comment upon the March 2017 statement from the Veteran’s daughter in which she asserted that the Veteran exhibited sleep apnea symptomatology continuously following service. Furthermore, the examiner is also asked to consider the likelihood that the Veteran’s sleep apnea is attributable to his exposure to hazardous chemical agents during his service in the Southwest Asia theater of operations. The Board notes that these potential exposures are corroborated by correspondences of record from the Office of the Assistant Secretary of Defense. A complete rationale is required for all opinions. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher M. Collins, 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.