Citation Nr: 21013172 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 10-31 809 DATE: March 8, 2021 REMANDED Entitlement to service connection, to include on a secondary basis, for obstructive sleep apnea (OSA) is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1967 to January 1969. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded the issues on appeal in January 2016 and September 2020 for additional development. As noted in the September 2020 Board decision, in a July 2020 letter, the Veteran was notified that the Veterans Law Judge who conducted his hearing was no longer employed by the Board, and that he could have a new hearing. The Veteran did not respond; therefore, another hearing was not be scheduled. To date, the Veteran has not responded or requested another hearing. Entitlement to service connection, to include on a secondary basis, for OSA is remanded. The Veteran contends that his OSA occurred in service or is, alternatively, secondary to his service-connected disabilities. The September 2020 Board decision remanded the issue of OSA as the January 2017 VA opinion did not provide an opinion as to whether the Veteran’s sleep apnea was aggravated by any of his service-connected disabilities. Pursuant to the September 2020 Board remand directives, an addendum VA opinion was obtained in December 2020. See December 2020 C&P Exam. However, the Board notes that the December 2020 VA examiner provided a contradictory and conclusory opinion. Specifically, the examiner acknowledged that there may be an association between PTSD and OSA but then found there were no studies that establish a causative or aggravation relationship without further explanation. The examiner also found there is no causal relationship between diabetes or prostate cancer and OSA and did not provide a rationale. The December 2020 VA opinion is conclusory and as such, is insufficient. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that the probative value of a medical opinion comes from its reasoning); see Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (“A mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor’s opinion.”). On remand, the reviewing clinician needs to adequately address aggravation and provide adequate rationale for the Board to make an informed decision. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). The Board also notes that aggravation pursuant to 38 C.F.R. § 3.310 does not require a permanent worsening of the condition. Rather, aggravation is any incremental increase in disability attributable to the service-connected disability, i.e., any additional impairment of earning capacity that is above the degree of disability existing before the increase, regardless of its permanence. See Ward v. Wilkie, 31 Vet. App. 233 (2019). Additionally, in the January 2021 appellate brief, the Veteran, through his representative, noted several studies revealing the high prevalence of OSA in psychiatric patients, particularly in male veterans with PTSD. See January 2021 Appellate Brief. The brief also noted the Veteran suffered from chronic pain due to his service-connected prostate cancer and diabetes mellitus and highlighted another study showing increased risk of sleep disturbances due to chronic pain. On remand, the requested addendum opinion should consider the entire claims file, to include the aforementioned arguments and referenced studies. Entitlement to a TDIU is remanded. Finally, because a decision on the remanded issue of entitlement to service connection for OSA could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. Thus, a remand of the claim for TDIU is required. The RO has previously requested the Veteran complete VA Form 21-8940, Application for Increased Compensation Based on Unemployability to support his claim TDIU. The Veteran has not yet submitted a completed VA Form 21-8940. As the appeal is remanded, the Veteran will have another opportunity to submit this form. The matters are REMANDED for the following action: 1. Request that the Veteran complete and return a VA Form 21-8940(Application for Increased Compensation Based on Unemployability). He should be advised that failure to return the completed form may result in a denial of his TDIU claim. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s obstructive sleep apnea is at least as likely as not aggravated (any incremental increase in his OSA attributable to any service-connected disability) by his service-connected disabilities, to include PTSD, diabetes, and prostate cancer. The entire claims file and a copy of this Remand must be made available to the reviewing examiner and the examiner shall indicate in the report that the claims file was reviewed. The examiner should address, as appropriate, the studies referenced in the January 2021 appellate brief submitted in support of the claim. A complete rationale must be provided. If an opinion cannot be provided without resort to mere speculation, it should be clearly explained why that is so. 3. After the above development has been completed, readjudicate the issues on appeal, to include the inextricably intertwined issue of entitlement to TDIU. If any claim on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if in order. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Cheng, 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.