Citation Nr: 21022900 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 16-26 491 DATE: April 19, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Navy from October 1975 to October 1979. He appeals an October 2015 rating decision by the Agency of Original Jurisdiction (AOJ) denying service connection for sleep apnea. In September 2018, the Board remanded the Veteran’s claim to the AOJ for further development. The claim is back before the Board for further appellate proceedings. The Board finds that further evidentiary development is necessary and remands the case to ensure compliance with the Board’s prior remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In September 2018, the Board remanded the claim to obtain an additional opinion from the VA examiner who provided the October 2015 VA opinion as to whether the Veteran’s service-connected asbestosis has aggravated his sleep apnea and, if not, whether the Veteran’s sleep apnea is directly related to his service. In the September 2018 remand, the Board specifically requested that, “[a] clearly stated rationale for any opinion offered should be provided and must not be based solely only the lack of any in-service records.” The October 2015 VA examiner provided an opinion in September 2019 that the Veteran’s service-connected asbestosis has not aggravated the Veteran’s sleep apnea beyond its natural progression. The Board finds that the VA examiner provided sufficient rationale in support of the aggravation opinion. However, as the VA examiner did not provide an opinion as to whether the Veteran’s sleep apnea is directly related to his service, the AOJ requested an addendum opinion from the VA examiner. The October 2015 VA examiner provided an addendum opinion in April 2020 where she opined that the Veteran’s sleep apnea is less likely than not related to service. In support of the opinion, the VA examiner noted that she reviewed all records and that the service treatment records are silent for sleep apnea. The Board finds that an additional VA opinion is necessary as to direct service connection because the rationale provided illustrates that the VA examiner relied solely on the in-service records showing no evidence of sleep apnea. See Stegall, 11 Vet. App. at 271. Furthermore, the April 2020 opinion reflects no consideration of the Veteran’s confirmed in-service exposure to asbestos. As such, the Board finds that a remand is required for a VA opinion that addresses whether the Veteran’s sleep apnea is directly related to his service, as required by prior Board remand instructions. The matter is REMANDED for the following actions: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his sleep apnea that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. Thereafter, obtain an opinion from a qualified clinician to determine the nature and etiology of the Veteran’s sleep apnea. The evidentiary record, including a copy of this remand, must be made available to and be reviewed by the reviewing clinician. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. After the record review and examination of the Veteran, if deemed necessary, the reviewing clinician is asked to respond to the following inquiries: Is it at least as likely as not that the Veteran’s sleep apnea had its onset during, or is otherwise related to, his active duty service, to include his confirmed asbestos exposure? Is it at least as likely as not that the Veteran’s sleep apnea was caused or aggravated by his service-connected asbestosis? In rendering this opinion, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The reviewing clinician is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record, including in the service treatment records, to support his or her conclusions. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After the above development has been completed to the extent possible, readjudicate the claim. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board, if otherwise in order. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Breitbach, 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.