Citation Nr: 21008514 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 15-14 351 DATE: February 17, 2021 REMANDED The issue of entitlement to service connection for sleep apnea, to include as secondary to posttraumatic stress disorder (PTSD), is remanded for additional development. REASONS FOR REMAND The Veteran served on active duty from June 1969 to July 1971, with several periods of reserve service and service in the Republic of Vietnam from December 1969 to November 1970. He was awarded the National Defense Service Medal, Combat Infantryman Badge, Vietnam Service Medal with two Bronze Stars, and Vietnam Campaign Medal with 1960 Device. This matter comes before the Board of Veterans’ Appeals (Board) from July 2014 and November 2016 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Board remanded the issue of entitlement to service connection for sleep apnea to obtain a VA examination. In December 2020, the RO granted service connection for the residuals of malaria, assigning a noncompensable rating effective September 13, 2016. As the Veteran has not yet appealed his initial rating assignment or his effective date, the Board finds that this grant of service connection constitutes a full award of the benefit sought on appeal with respect to that issue. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning “downstream” issues, such as the compensation level assigned for the disability and the effective date); see also 38 C.F.R. § 20.200. Service Connection The Veteran contends that service connection for sleep apnea is warranted as secondary to his service-connected PTSD. Service treatment records are absent complaints of or treatment for sleep apnea, or symptoms associated therewith. Post-service treatment records show diagnoses of and treatment for sleep apnea, including use of a CPAP machine. Pursuant to the November 2018 Board remand, the Veteran was afforded a VA examination in December 2020. The VA examiner noted a diagnosis of sleep apnea and opined that the Veteran’s sleep apnea was less likely than not related to service because there was no evidence of sleep apnea in service. The examiner also opined that sleep apnea was less likely than not caused by or a result of service-connected PTSD as there was no pathophysiological relationship upon review of relevant medical literature. Unfortunately, the examiner provided conclusory opinions and did not address whether the Veteran’s sleep apnea has been aggravated (worsened beyond normal progression of the disorder) by his service-connected disabilities, to include PTSD, and/or by medication taken to treat his service-connected disabilities, including PTSD. See El-Amin v. Shinseki, 26 Vet. App. 136 (2013) (holding that the Board errs in relying on a medical opinion that only addresses whether a nonservice-connected claim is “related to” a service-connected disability and the opinion does not address whether the nonservice-connected disability is aggravated by a service-connected disability). Accordingly, the Board finds that the opinion of record is inadequate and that a new opinion should be obtained to determine the nature and etiology of his sleep apnea. See Barr v. Nicholson, 21 Vet. App. 303, 311(2007) (once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). The matter is REMANDED for the following actions: 1. Forward the claims file, including a copy of this REMAND, to a clinician, other than the November 2020 clinician who rendered the previous opinion, to provide an addendum opinion on the nature and etiology of the Veteran’s sleep apnea. The clinician should respond to the following: (a.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s sleep apnea was caused by a service-connected disability, to include PTSD, and/or by medication prescribed to treat any of his service connected disabilities, specifically including, but not limited to, PTSD? (b.) Is it at least as likely as not that the Veteran’s sleep apnea has been aggravated by a service-connected disability, to include PTSD, and/or by medication prescribed to treat any of his service-connected disabilities, specifically including, but not limited to, PTSD? (c.) The examiner is informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition, versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability present (i.e., a baseline) before the onset of the aggravation. (d.) A complete rationale must be provided for any opinions expressed. If any requested opinion cannot be provided without resorting to mere speculation, then the examiner should explain why this is so, specifically addressing whether the inability to provide an opinion stems from not having sufficient information/evidence or the limits of medical knowledge. 2. After completing the requested actions, and any additional action deemed warranted, the AOJ should readjudicate the claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Bilstein, 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.