Citation Nr: 21014558 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 190627-10885 DATE: March 15, 2021 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to sarcoidosis, is remanded. REASONS FOR REMAND The Veteran had active duty service in the United States Navy from August 1985 to July 1989. The rating decision on appeal was issued in March 2019. In his June 2019 VA form 10182 (Decision Review Request: Board Appeal), the Veteran elected the Direct Review option for this appeal; therefore, the Board may therefore consider only the evidence in the record at the time of the March 2019 agency of original jurisdiction (AOJ) decision. See 38 C.F.R. § 20.301. This case was previously before the Board in February 2020, when service connection for sleep apnea was denied. The Veteran appealed the case to the United States Court of Appeals for Veterans Claims (Court), where the parties filed a Joint Motion for Remand (JMR). In October 2020, the Court granted the JMR, vacating the Board decision denying service connection and remanding the case for further proceedings. The case has been returned to the Board at this time for further appellate review. Entitlement to service connection for sleep apnea, to include as secondary to sarcoidosis, is remanded. The Veteran claimed service connection for sleep apnea, which he reported had its onset in 2008 after lung surgery to treat his service-connected sarcoidosis. In the Board’s February 2020 denial, it relied on a February 2019 VA opinion that concluded the sleep apnea is less likely as not caused by or permanently aggravated by the service-connected sarcoidosis. In the JMR, the parties agreed that “permanently aggravated” is a higher standard than required by law, and it was improper for the Board to rely on this opinion. The Board further notes the February 2019 VA opinion did not address causation and aggravation separately, appearing to provide the same rationale for both theories of secondary service connection. See 38 C.F.R. § 3.310; see also Atencio v. O’Rourke, 30 Vet. App. 74, 91 (2018) (causation and aggravation are independent concepts and should have separate findings and rationale); El-Amin v. Shinseki, 26 Vet. App. 136 (2013) (findings of “not due to,” “not caused by” and “not related to” are insufficient to address the question of aggravation under 38 C.F.R. § 3.310(b)). The record does not contain any other opinions addressing the relationship between the Veteran’s sleep apnea and sarcoidosis. As there are no adequate opinions in the record, it was a pre-decisional error for the AOJ to rely on the February 2019 opinion. A remand is necessary to obtain an opinion addressing all aspects of the Veteran’s claim. The matter is REMANDED for the following action: Forward the claims file to an appropriate clinician to determine whether the Veteran’s sleep apnea is related to his military service or to his service-connected disabilities. Following review of the claims file, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the sleep apnea disability is (a) caused by; or (b) aggravated (i.e., worsened beyond the normal progression of the disease) by the Veteran’s service-connected sarcoidosis. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the sleep apnea disability prior to aggravation by the service-connected sarcoidosis. Please note, causation and aggravation are separate concepts and must be addressed independently. The examiner should specifically address the Veteran’s lay statement regarding the onset of sleep apnea symptoms around the time of the March 2008 lung surgery. The examiner may not dismiss the Veteran’s report of symptoms capable of lay observation solely on the basis that they are not recorded in contemporaneous treatment records. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Josey, 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.