Citation Nr: 21023078 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 14-03 141 DATE: April 20, 2021 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from August 1980 to August 1983, July 1989 to March 1990, and April 1990 to April 1993. This case was previously before the Board on appeal from a December 2009 rating decision. In May 2017, the Veteran and his spouse testified before the undersigned Veterans Law Judge at a video conference hearing. The Board previously remanded this case in November 2017 for additional development. Then, in a December 2018 decision, the Board denied the Veteran’s claim for entitlement to service connection for sleep apnea. The Veteran appealed the Board’s decision to the Court. In a January 2020 Order, the Court granted a Joint Motion for Remand (JMR) which vacated the Board’s December 2018 decision and remanded the matter for readjudication consistent with instructions outlined by the parties in the JMR. In April 2020, the Board remanded the claim again for further development, namely, to obtain addendum VA medical opinions as to whether the Veteran’s service-connected psychiatric disability causes or aggravates his sleep apnea or is secondary to his service-connected fibromyalgia, with obesity as an intermediate step. The Veteran was previously represented in his appeal by the Disabled American Veterans. However, in October 2020 correspondence, the Veteran revoked this representation. The Veteran has not appointed a new representative and proceeds pro se. Unfortunately, the appeal must be remanded once again for further development. Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide this claim so that the Veteran is afforded every possible consideration. Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities, is remanded. In response to the April 2020 Board decision, a September 2020 VA medical opinion was submitted. Therein, the VA examiner opined that the Veteran’s sleep apnea was less likely a direct result of service or proximately due to his service-connected psychiatric disability, fibromyalgia, tinnitus, or bilateral hearing loss. After noting that the Veteran has a long history of snoring and daytime hypersomnolence and was first diagnosed with sleep apnea in 2008, the VA examiner concluded that a review of the literature does not support these service-connected disabilities as a cause of sleep apnea. No opinion regarding aggravation or obesity as an intermediate step was provided. A January 2021 VA medical opinion was additionally submitted. Therein, after highlighting the same facts as above, the VA examiner again opined that the Veteran’s sleep apnea is not proximately due to his service-connected psychiatric disability or fibromyalgia, to include obesity as an intermediate step. The VA examiner was unable to provide a baseline of severity “given it requires objective measurements.” The VA examiner explained that such measures were not obtained until years after service and that there was no evidence of sleep apnea during service. The VA examiner concluded that “this is an acquired issue after service.” Regarding obesity, the VA examiner stated that “any medication may have a role in weight gain, but the medications used are low risk” The above findings are inadequate to address the question of aggravation. See El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). The VA examiner’s rationale that “this is an acquired issue after service” is irrelevant as to whether his psychiatric disability or fibromyalgia aggravated his sleep apnea. Put simply, the onset of the Veteran’s sleep apnea in relation to his separation from service, while relevant to a direct theory of causation, is irrelevant in the context of whether or not a service-connected disability aggravated it. For this reason, the January 2021 VA medical opinion is inadequate, and remand is necessary to obtain another VA medical opinion. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Furthermore, a February 2021 report of contact indicates that the Veteran is being provided a sleep study with his private physician. It is not clear if that sleep study was performed, or not. On remand, the VA must take appropriate steps to obtain such documentation, if available. The matters are REMANDED for the following action: 1. Obtain any outstanding VA or private treatment records, to include the private sleep study mentioned in the February 2021 report of contact, if available. 2. Obtain an addendum VA medical opinion from a VA physician other than the one who drafted the September 2020 and January 2021 opinions, to assess the nature and etiology of the Veteran’s sleep apnea. A full VA examination (or telehealth appointment) should not be scheduled unless it is deemed necessary by the new examiner. The examiner must review the Veteran’s claims file in its entirety, to include a copy of this REMAND, the April 2020 REMAND, and the January 2020 Court Order and Joint Motion for Remand. The completion of this review must be noted in the report. Thereafter, the examiner is asked to provide a complete and thorough medical opinion addressing the following: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea was incurred in or caused by an in-service injury, event, or illness? In providing the above opinion, the examiner must specifically address the May 2017 Board hearing transcript, in which the Veteran and his spouse testified that the Veteran’s symptoms of sleep apnea, including trouble sleeping and interrupted breathing during sleep, began shortly after he returned from serving in Desert Storm in September 1992. (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea was caused by his service-connected psychiatric disability? (c) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea was aggravated by his service-connected psychiatric disability? (d) Is it at least as likely as not (50 percent or greater probability) that that a service-connected disability caused the Veteran to become obese? (i) If yes, was the obesity a substantial factor in causing or aggravating the Veteran’s sleep apnea? (ii) If yes, would sleep apnea not have occurred but for the obesity caused by the Veteran’s service-connected disability? The examiner is reminded that the Veteran is currently service-connected for PTSD with sleep disorder, insomnia type, and depression, fibromyalgia, tinnitus, and bilateral hearing loss. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Finelli, 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.