Citation Nr: 21007903 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 15-19 075 DATE: February 11, 2021 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to a service-connected disability, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from April 1976 to December 1992. In October 2018, the Veteran presented testimony before a Veterans Law Judge (VLJ) who is no longer employed by the Board. A transcript of this hearing has been associated with the claims file, and will be taken into consideration by the undersigned VLJ in adjudicating the Veteran’s claim. In November 2020, the Veteran was notified that the VLJ who conducted his October 2018 hearing was no longer employed by the Board, and was asked if he desired another hearing. The letter advised the Veteran that he had 30 days from the date of the letter to respond. As the Veteran has not responded to the November 2020 letter, the Board will proceed with the adjudication of his claim. In January 2020, the Board remanded the Veteran’s claims for entitlement to service connection for sleep apnea, ischemic heart disease, hypertension, and gastroesophageal reflux disease (GERD) to the Agency of Original Jurisdiction (AOJ) for additional development. In a March 2020 rating decision, the AOJ granted the claims for entitlement to service connection for ischemic heart disease, hypertension, and GERD. As this action constitutes a full grant of the benefit sought on appeal with regard to those issues, they are no longer before the Board. AB v. Brown, 6 Vet. App. 35 (1993). However, the AOJ continued the denial of the Veteran’s claim for entitlement to service connection for sleep apnea. Accordingly, that claim is addressed herein. Entitlement to service connection for sleep apnea, to include as secondary to a service-connected disability is remanded. In its January 2020 remand, the Board requested that the AOJ obtain an addendum opinion with regard to the etiology of the Veteran’s sleep apnea. The Board noted that the Veteran provided testimony during an October 2018 hearing before the Board in which he described in-service symptoms of snoring and fatigue, and requested that the VA examiner address this pertinent evidence in the opinion on direct service connection. The requested addendum opinion was provided in March 2020. The March 2020 VA examiner opined that the Veteran’s sleep apnea was not related to service because the medical records indicated that his sleep apnea was more likely secondary to posttraumatic stress disorder (PTSD). No other rationale was provided. The AOJ requested another opinion from the VA examiner with supporting rationale. In an April 2020 opinion, the same VA examiner elaborated that, while medical research has shown that sleep apnea and PTSD are associated, there was “no definitive evidence” of a nexus between the Veteran’s PTSD and sleep apnea; thus, it was less likely than not that the Veteran’s sleep apnea was proximately due to his PTSD. Unfortunately, remand for a new VA opinion is required for several reasons. Initially, the Board observes that the March 2020 and April 2020 VA opinions, provided by the same VA examiner, are inconsistent with one another, as the March 2020 VA opinion determined that the Veteran’s sleep apnea was not related to his active duty service because it was related to his PTSD, but the April 2020 opinion found that sleep apnea was not proximately due to PTSD. Additionally, neither VA opinion addressed the pertinent evidence identified by the Board’s January 2020 remand – specifically, the Veteran’s lay statements of in-service symptoms of snoring and fatigue. Further, the April 2020 opinion concluded that the Veteran’s sleep apnea was not “proximately due” to his PTSD because there was “no definitive evidence” of a nexus; however, the standard for such a medical opinion is not “definitive evidence,” it is “at least as likely as not,” which requires no more than a 50 percent probability. Last, the April 2020 opinion did not provide an opinion or discuss whether the Veteran’s sleep apnea was aggravated by his service-connected PTSD. Accordingly, remand is required. The matters are REMANDED for the following action: Provide the Veteran with a new VA examination by an appropriate physician to determine the etiology of his sleep apnea. The Veteran’s claims file, all electronic records, and a copy of this remand must be reviewed by the examiner, and the examiner must state that this evidence was reviewed in the examination report. All pertinent symptomatology and findings must be reported in detail. All indicated tests and studies must be accomplished. Based upon a complete review of the evidence of record, to include the Veteran’s lay statements and testimony, the VA examiner must provide the following opinions: (a.) Is it at least as likely as not (i.e., a 50 percent probability or more) that the Veteran’s sleep apnea was caused by or incurred during the Veteran’s active duty service? (b.) Is it at least as likely as not that the Veteran’s sleep apnea is proximately due to, the result of, or aggravated beyond its normal progression by the Veteran’s service-connected PTSD? Aggravation is defined as any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury. The examiner is advised that a finding that sleep apnea was aggravated beyond its normal progression due to a service-connected disability does not require evidence of a permanent worsening and may encompass any additional impairment in earning capacity resulting from an already service-connected condition. A complete rationale for all opinions must be provided. The examiner is asked to discuss the favorable evidence in the Veteran’s service treatment records as well as the Veteran’s testimony of experiencing snoring and fatigue during service, and is advised that the Veteran is competent to report symptomatology observed either during service or after service discharge. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Katz, 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.