Citation Nr: 21009510 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 20-17 344 DATE: February 22, 2021 REMANDED The claim of entitlement to service connection for obstructive sleep apnea (OSA) to include as secondary to posttraumatic stress disorder (PTSD) and as due to herbicide agent exposure, is remanded. REASONS FOR REMAND The Veteran had honorable active duty service in the United States Army from August 1965 to July 1967. He received the Vietnam Service Medal, among other notable commendations. This matter comes before the Board of Veterans’ Appeals (Board) from a May 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2) (2012) and 38 C.F.R. § 20.900(c) (2019). Although regrettable, additional remand is required for full compliance with the Board’s previous remand instructions. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). 1. The claim of entitlement to service connection for OSA to include as secondary to PTSD and as due to herbicide agent exposure, is remanded. The Veteran contends that he has OSA due to his service in Vietnam, either due to his exposure to Agent Orange or as secondary to his service-connected PTSD. See Appellate Brief received June 2020. As the Board noted in its September 2020 decision, the Veteran’s private treatment records confirm that the Veteran has a current diagnosis of OSA. See June 2018 sleep study (identifying the Veteran as having mild OSA, but noting that in the supine position, the Veteran’s OSA was severe). Further, while the Veteran’s service treatment records are negative for complaints of a sleep disorder, the Veteran and his spouse reported that the Veteran has had breathing difficulty since his active service. His spouse reported that the Veteran has gasped for breath at night ever since service. See VA 21-4138 Statements in Support of Claim received November 2019. Additionally, the Veteran’s representative contended that the Veteran’s OSA was related to his service-connected PTSD and referred to new research suggesting that Veterans with PTSD were at a high risk for sleep apnea. See Appellate Brief received June 2020. As noted the Board, the Veteran had active service in Vietnam and, although OSA is not on the list of diseases presumptively associated with herbicide exposure, service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1116(a)(2), 38 C.F.R. § 3.309(e), 3.303(d). Given the evidence outlined above, the Board remanded this matter for either an in-person or telemedicine examination regarding the Veteran’s claim. On remand, however, no in-person or telemedicine examination was provided. The assigned VA clinician based her opinion only on a review of records contained in the Veteran’s file and failed to adequately address the lay statements of record regarding the onset of the Veteran’s sleep difficulties. Further, while the examiner outlined a number of risk factors for OSA, she did not state whether the Veteran actually had any of the risk factors identified, or whether, in the Veteran’s specific case, one or more of the risk factors were likely the cause of the Veteran’s OSA. Additionally, the examiner did not adequately address the medical research evidence (submitted by the Veteran’s representative) in her conclusion that PTSD was not a risk factor for sleep apnea. Accordingly, remand to correct these deficiencies is warranted. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination (which may include a telemedicine appointment) by a VA medical provider with the appropriate training and expertise to determine the nature and etiology of the Veteran’s OSA. A complete copy of the claims file must be made available to the examiner. The examiner must consider the Veteran’s lay reports of observable symptomatology. The examiner must also take a history from the Veteran regarding his symptoms. After a thorough review of the medical and lay evidence of record, the examiner should address the following: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s OSA had its onset during active service or within one year of separation from service, or, otherwise resulted from active military service? Please consider and discuss the Veteran’s service in Vietnam and his exposure to any herbicide agents at that time. The examiner should provide a complete rationale for all opinions provided. After the above opinions, the examiner should also answer: is it at least as likely as not (50 percent probability or greater) that the Veteran’s OSA was either: (b.) caused by the Veteran’s service-connected disability, PTSD, OR; (c.) aggravated by (i.e., worsened beyond the normal progression of the disease) the Veteran’s service-connected disability, PTSD? In addressing whether the Veteran’s service-connected PTSD, was a source of aggravation for the Veteran’s OSA the examiner must attempt to establish a baseline level of severity of the OSA prior to aggravation by the service-connected disability, if any can be determined. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. (Continued on the following page.) 2. Then, the agency of original jurisdiction should readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran’s satisfaction, he and his representative should be provided a supplemental statement of the case and an appropriate period for response before the case is returned to the Board for further appellate action. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Hart, Associate 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.