Citation Nr: 21008779 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 17-51 929 DATE: February 18, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from May 1998 to July 2001. This matter is before the Board of Veterans’ Appeals (Board) on appeal from February 2015, July 2015, and November 2015 Department of Veterans Affairs (VA) rating decisions. At his request, the Veteran was scheduled for a Board videoconference hearing on October 18, 2019. In October 3, 2019 dated correspondence, he withdrew the hearing request. The Veteran originally filed a claim seeking service connection for sleep apnea in October 2014. A February 2015 rating decision denied the claim, and the Veteran was notified of the denial and his appellate rights by a letter that month. In March 2015 he filed a claim to reopen that claim, and a July 2015 rating decision, reopened the claim but confirmed the denial of the claim on de novo consideration; he was notified of the July 2015 denial and of his appellate rights by a letter that month. In August 2015, he again filed a petition to reopen the claim. The November 2015 rating decision, which is the subject of this appeal, reopened the claim but again denied it on the merits, and the Veteran submitted his timely NOD in response. [As new and material evidence was received within a year following, the February 2015 and July 2015 rating decisions did not become final. 38 C.F.R. § 3.156 (b); see also Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011).] In January 2020, the Board remanded the matter for additional development. The Veteran has a separate pending appeal for a higher rating for a psychiatric disability and has an upcoming Board hearing in that matter. That matter will be the subject of a separate decision, after the hearing is held. Entitlement to service connection for sleep apnea. The January 2020 Board remand sought an addendum medical advisory opinion that addressed whether the Veteran’s current sleep apnea was incurred in or caused by service, or is proximately due to or was aggravated by a service-connected disability. In a December 2020 opinion, the consulting VA provider opined that the Veteran’s sleep apnea was aggravated by his service-connected disabilities, but indicated that he could not determine a baseline level of severity based on medical evidence of record prior to aggravation or the earliest medical evidence following aggravation by a service-connected disability. The provider explained that in order to establish a baseline severity, the Veteran would have had to have undergone a complete sleep apnea workup prior to his diagnoses of migraines, depressive disorder, tinnitus, or hearing loss. The examiner further noted that since this testing was not medically necessary at that time, it was not performed. The Board finds the examiner’s rationale inadequate for decision-making purposes. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). VA policy dictates that it will not concede that a non-service-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. See 38 C.F.R. § 3.310(b). The December 2020 consulting provider indicated that for a baseline level to be established there must have been a complete sleep apnea work-up before the service-connected (claimed aggravating) disabilities were diagnosed; however, that is not so. The degree of aggravation may also be established by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of the disabilities. Here, that would mean the changes in severity from the time the service-connected disabilities were diagnosed until the current level of severity of the sleep apnea has been established. The examiner’s report shows that the Veteran’s sleep apnea was described as mild in July 2013 and was then described as moderate in July 2014. That evidence is sufficient to indicate there was a worsening of the Veteran’s sleep apnea during the period for consideration. The December 2020 opinion did not address whether the worsening was beyond the normal progress of the sleep apnea or was due to the impact of the service-connected disabilities during that period of time. Further, the examiner did not address whether the Veteran’s weight gain (as obesity claimed as due to psychiatric disability) was an intermediate step contributing to cause the worsened, from mild to moderate, severity of the sleep apnea. The medical treatise cited in the October 2019 private medical opinion must be addressed in any opinion offered, as directed in the January 2020 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The matter is REMANDED for the following: Arrange for the Veteran’s claims file to be returned to the December 2020 VA sleep apnea opinion provider (if unavailable forwarded to another appropriate clinician) for re-review/review and an addendum medical advisory opinion. [If further examination of the Veteran is deemed necessary for an opinion sought, such should be arranged.] The consulting provider should: Identify the baseline severity of the Veteran’s sleep apnea prior to any aggravation by service-connected disabilities (as shown by the earliest medical evidence created at any time before onset of aggravation, when the service-connected disabilities were diagnosed), and the current level of severity of the sleep apnea (after any aggravation was completed). Discuss the medical evidence of record suggesting that sleep apnea has worsened during the period for consideration, and opine, with thorough explanation, whether the worsening is due to natural progression of the Veteran sleep apnea or due to the impact of by the Veteran’s service-connected disabilities. Specifically address the October 2019 private provider’s suggestion that obesity due psychiatric disability (as an intermediate step between psychiatric disability and increased severity of sleep apnea) contributed to aggravation of sleep apnea. The rationale included for the response to this opinion request must discuss the applicability of the medical treatise cited by the private provider. All opinions must include a compete explanation of rationale. If an opinion sought (specifically including regarding the baseline severity of sleep apnea) still cannot be provided without resort to mere speculation , there must be an explanation why that is so (and if it is because the information available is insufficient, the further information needed must be identified). GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Baker, 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.