Citation Nr: 21009513 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 17-12 774 DATE: February 22, 2021 ORDER The claim for service connection for sleep apnea is remanded. REASONS FOR REMAND 1. The claim for service connection for obstructive sleep apnea is remanded. The Veteran asserts that service connection for obstructive sleep apnea (OSA) is warranted. He primarily argues that his OSA has been caused or aggravated by his service-connected anemia and/or anxiety disorder. In September 2019, the Board inter alia denied a claim for service connection for sleep apnea, including as secondary to service-connected anemia and an acquired psychiatric disorder. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court). In July 2020, while his case was pending at the Court, the VA’s Office of General Counsel and the Veteran’s representative filed a Joint Motion requesting that the Court vacate the Board’s September 2019 decision. That same month, the Court issued an Order vacating the September 2019 Board decision and remanding the case for compliance with a Joint Motion for Remand (JMR). Service connection is currently in effect for: microcytic anemia, an anxiety disorder, sinus arrhythmia, microcytic bilateral pes planus, loss of right elbow supination, residuals of a right elbow injury with traumatic arthritis, a back condition, tinnitus, right lower extremity radiculopathy, right knee degenerative joint disease, gastroesophageal reflux disease, pseudofolliculitis barbae, and bilateral foot degenerative changes. A review of the July 2020 JMR shows that it was agreed that a vacatur, in part, and remand are warranted. The Board erred by finding that VA’s duty to assist was satisfied by a July 2017 VA examination and March 2018 VA addendum opinion (both written by J.C., M.D.), which were inadequate for adjudication purposes. The parties agreed that the July 2017 and March 2018 opinions are inadequate because the VA examiner did not adequately address whether the Veteran’s sleep apnea was aggravated by his service-connected anemia or anxiety disorder. Citing El-Amin v. Shinseki, 26 Vet. App. 136, 141 (2013). Although the examiner opined that the Veteran’s sleep apnea was not aggravated by his anemia, and that his anemia “would have no bearing on” sleep apnea, this opinion is not supported by a well-reasoned medical rationale. In the 2018 VA addendum, the examiner provided an opinion as to whether the Veteran’s sleep apnea is caused by his service-connected anxiety, but the examiner did not provide an aggravation opinion. The examiner noted that the Veteran’s anxiety would not “materially affect” his sleep apnea “but, if this is an attempt to address aggravation, it is unclear and not supported by a well-reasoned medical rationale.” A remand is warranted for VA to obtain a medical examination that adequately addresses whether the Veteran’s sleep apnea is secondary to his service-connected anemia or anxiety disorder. On remand, a supplemental opinion should be obtained. The matters are REMANDED for the following action: 1. Obtain a supplemental opinion to address the etiology of the Veteran’s sleep apnea. If a physical examination is necessary to answer the Board’s questions, one should be scheduled. The examiner should be notified that service connection is currently in effect for: microcytic anemia, an anxiety disorder, sinus arrhythmia, bilateral pes planus, loss of right elbow supination, residuals of a right elbow injury with traumatic arthritis, a back condition, tinnitus, right lower extremity radiculopathy, right knee degenerative joint disease, gastroesophageal reflux disease, pseudofolliculitis barbae, and bilateral foot degenerative changes. The examiner should review the July 2020 Joint Motion for Remand for an explanation of why the July 2017 and March 2018 opinions were found to be inadequate. After review of the record, the examiner should address the following questions: a) Is it at least as likely as not (i.e., a likelihood of 50 percent or greater) that any sleep apnea disability was caused by the Veteran’s service-connected anemia or anxiety? Why or why not? b) Is it at least as likely as not (i.e., a likelihood of 50 percent or greater) that the Veteran’s sleep apnea was aggravated (made worse) by his service-connected anemia or anxiety? Why or why not? If aggravation is found, the examiner should identify a baseline level of severity of the sleep apnea 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 sleep apnea. If such cannot be done, it should be explained why. c) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s service connected disabilities caused him to be medically considered to be obese? Why or why not? d) If the Veteran’s service connected disabilities are considered to have rendered him obese, then did the obesity cause his sleep apnea? Why or why not? e) If the Veteran’s service connected disabilities are considered to have rendered him obese, then did the obesity aggravate (make worse) his sleep apnea? Why or why not? MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.S.E., 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.