Citation Nr: 21010602 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 15-29 889 DATE: February 25, 2021 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected residuals status post tonsillectomy, is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1982 to June 1991. The case was most recently before the Board in September 2019 when it was remanded for additional development. There has not been substantial compliance with the remand directives and the claim must be remanded again. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for sleep apnea, to include as secondary to residuals status post tonsillectomy, is remanded. The claim must be remanded again because the VA opinions obtained to date are inadequate. The Veteran was afforded VA examinations in June 2015 and March 2019, and VA medical opinions were obtained in May 2019 and December 2019. The opinions obtained are inadequate for numerous reasons, including failing to consider competent lay evidence of snoring during service and reports of problems breathing and snoring since tonsillectomy in service. None of the opinions have used the proper standard regarding the aggravation theory of secondary service connection. VA treatment records show that the Veteran was seen outside of VA for a Neuro Sleep Study at Duke Sleep Disorders in February 2020. The records were noted to be scanned into VISTA Imaging; however, the record available for review does not include those records. A March 2020 private treatment note identifies the February 2020 sleep study and provides a summary of the results. The treatment note indicates that the Veteran was scheduled to return in 3 months. Therefore, on remand, attempts must be made to obtain and associate with the claims file all private treatment records including those scanned into VISTA. The matters are REMANDED for the following action: 1. Obtain complete VA treatment records regarding the Veteran, including records scanned into VISTA Imaging, as well as the Veteran’s VA treatment records for the period from June 2020 to the present. 2. Ask the Veteran to complete a VA Form 21-4142 for private treatment, including from Duke Sleep Disorders. Make two requests for the authorized records from all identified providers, including Duke Sleep Disorders, unless it is clear after the first request that a second request would be futile. 3. Thereafter, obtain an addendum opinion from an appropriate clinician regarding the etiology of the Veteran’s sleep apnea. If an examination is deemed necessary, an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) should be scheduled. Copies of all pertinent records, and a copy of the remand, must be reviewed by the examiner. Following review of the file, and the remand, the examiner is asked to address the following: a. Is it at least as likely as not the Veteran’s sleep apnea is related to his service, including any evidence of snoring and sleep troubles in service? The examiner must comment on the Veteran’s reports of problems breathing and snoring since tonsillectomy in service, the Veteran’s and his ex-spouse’s reports of snoring in service, and provide an opinion regarding the relative likelihood of the Veteran’s snoring during service being sleep apnea as opposed to other causes. b. Is it at least as likely as not that the diagnosed sleep apnea was caused or aggravated by the Veteran's residuals status post tonsillectomy? The examiner must comment on the Veteran’s reports of problems breathing and snoring since tonsillectomy in service and the Veteran’s and his ex-spouse’s reports of snoring in service. Further, the examiner is asked to address the uvulopalatopharyngoplasty the Veteran underwent post-service. Aggravation here is defined as any increase in disability. c. If the examiner finds that the Veteran's sleep apnea has been aggravated by the Veteran's residuals status post tonsillectomy, the examiner should attempt to quantify the degree of aggravation beyond the baseline level that is attributed to the service-connected disability. A clear rationale for all opinions expressed is needed. If the examiner is unable to provide an opinion without resorting to speculation, he or she should explain why a definitive opinion cannot be provided. 4. Confirm that the VA medical opinion provided comports with this remand, specifically that the standard for secondary aggravation opinion is any increase in disability, not the standard of beyond the natural progression as noted on the examination form itself. If not, get an addendum. M.E. LARKIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Robert J. Burriesci, 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.