Citation Nr: 21015198 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 15-06 948 DATE: March 16, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1979 to December 1985. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned in April 2017. This matter was previously remanded by the Board in June 2018 and October 2020. The case has been returned to the Board at this time for further appellate review. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. In the October 2020 Board remand, the RO was directed to obtain a VA opinion regarding the Veteran’s OSA. In this regard, the VA examiner was directed to address the Veteran’s contentions that his in-service tonsillitis and prostatitis symptoms masked his obstructive sleep apnea from the time he was in service until the time he was diagnosed with obstructive sleep apnea. An opinion was obtained in November 2020; however, the VA clinician did not address the Veteran’s contentions. Accordingly, remand for a new VA opinion is necessary to ensure compliance with the Board’s prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Board also finds the November 2020 VA opinion to be inadequate for two reasons. First, the VA examiner impermissibly disregarded the lay evidence of record simply because it was not documented in any medical records. Second, the VA examiner opined that the Veteran’s OSA was not permanently aggravated by the Veteran’s service-connected chronic prostatitis. The U.S. Court of Appeals for Veterans Claims (Court) has held that aggravation pursuant to 38 C.F.R. § 3.310 does not require a permanent worsening of the condition. See Ward v. Wilkie, 31 Vet. App. 233 (2019). Accordingly, the standard used by the VA examiner is incorrect. For these reasons, remand for a new VA examination is warranted. This matter is REMANDED for the following action: Obtain an opinion, preferably with a qualified clinician who has not previously examined the Veteran, to determine whether the Veteran’s obstructive sleep apnea is related to the Veteran’s military service. If the selected clinician determines that an examination is necessary to respond to this request, such examination should be scheduled. After review of the claims file, and examination of the Veteran if deemed necessary, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s obstructive sleep apnea began in or is otherwise caused by the Veteran’s active service. In doing so, the examiner must address (1) the competent lay evidence of record that the Veteran has snored and stopped breathing in his sleep since his time in service, and (2) the Veteran’s contentions that his in-service tonsillitis and prostatitis symptoms masked his obstructive sleep apnea symptoms from the time he was in service until the time he was diagnosed with obstructive sleep apnea. The examiner is advised that he or she may not dismiss the report of symptoms capable of lay observation solely on the basis that such complaints were not corroborated by contemporaneous treatment records. In addition, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s obstructive sleep apnea was (a) caused by; or (b) aggravated (i.e., worsened beyond the normal progression of the disease) by the Veteran’s service-connected chronic prostatitis and cystitis with voiding dysfunction. In doing so, the examiner should address the medical literature referenced by the Veteran. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the Veteran’s obstructive sleep apnea prior to aggravation by the service-connected chronic prostatitis and cystitis with voiding dysfunction. Please note, causation and aggravation are separate concepts and must be addressed independently. (Continued on the next page)   The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion.  If the examiner rejects the Veteran’s reports, he or she must provide a reason for doing so. 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 M. Elias, 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.