Citation Nr: 21023461 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 11-33 481 DATE: April 20, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA).   REASONS FOR REMAND The Veteran served on active duty from July 1988 to September 2000. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Offices (RO). The claim of entitlement to service connection for OSA was remanded by the Board for more development in March 2017, April 2018, and May 2019. It now returns for further appellate review. Service connection for sleep apnea is remanded. This issue is remanded for a new VA opinion. The Board previously remanded in May 2019 as a prior VA opinion did not consider, although it negated aggravation summarily, whether medications aggravated the cited tendency to gain weight. The medical opinion further did not consider whether medications to treat one or more of his service-connected disabilities aggravated the vulnerability to sleep apnea signified by his palate structure. See El-Amin v. Shinseki, 26 Vet. App.136, 140 (2013). It also did not address the service-connected disabilities separately. The Board found the opinion inadequate because it was incomplete, conclusory, an insufficiently supported by medical analysis and reasoning. See Barr v Nicholson, 21Vet. App.303, 311 (2007). Upon remand, a VA examiner in February 2020 opined that it is less likely than not (i.e., less than 50 percent probability), that the Veteran’s OSA is proximately due to or the result of any of his service-connected conditions. As a rationale, the examiner discussed the lack of medical literature supporting a causative link between OSA and each of his service-connected disabilities. Furthermore, the examiner also explained that, though the Veteran’s weight fluctuated slightly (between five and ten pounds) during the course of the appeal, such fluctuation was within normal limits and not of sufficient severity to cause or aggravate existing sleep apnea. Finally, the examiner noted that the medication taken for the service-connected disabilities do not have the recognized side effect of breath disturbance, during the night or at any other time. The same VA examiner went on to provide an addendum opinion in July 2020, which reiterated and updated the conclusions for each individual service-connected disability that such did not cause or aggravate the Veteran’s OSA. Specifically, the examiner again described the lack of medical evidence supporting a link between the Veteran’s medication taken for service-connected disabilities and his OSA, to include on the basis of weight gain. The Board finds that his opinion remains inadequate for two reasons. First, it is not based on a factually accurate foundation. The examiner found the Veteran’s weight to have fluctuated slightly (between five and ten pounds) during the course of the appeal. Yet, an earlier VA examiner in October 2018 noted that from 2003-2008 the Veteran’s weight averaged in the 190's, but by 2009 it went up to 212, and was then back in the 190's by 2012, but in 2016 it again went over 200, and up to a max of 217 in 2017. The Board observes that this latter VA examiner’s summary is more accurate with the VA medical records. This conflicts with the February 2020 VA examiner’s summary that the Veteran’s weight fluctuated within a range of five to ten pounds. Second and relatedly, the VA examiner did not consider a direct theory of entitlement. The examiner noted the Veteran’s report of sleep apnea symptoms beginning between 2007-2008. Yet, in an April 2017 brief, the Veteran’s representative argued that the Veteran had hypertension during service, which could have been caused by undiagnosed sleep apnea. At an earlier, October 2018 VA examination, the VA examiner summarized a March 2009 sleep study as showing complaints of sleepiness for the last 7-8 years, worse in past 6 months. The Board observes that this places the onset of his symptoms more proximate in time to service. Collectively, this raises a direct theory of entitlement. Although the February 2020 VA examiner was not asked to opine on a direct theory, the Board finds that one is necessary at this point. The matters are REMANDED for the following action: Obtain an opinion from an appropriate clinician regarding the Veteran’s sleep apnea. An in-person examination of the Veteran should be arranged if determined necessary by the appointed examiner. The examiner is asked to address each of the following: (a.) Whether the diagnosis is at least as likely as not related to an in-service injury, event, or disease, including hypertension in service. The examiner should particularly address the theory that the Veteran’s hypertension in service was caused by an undiagnosed sleep apnea with symptoms such as sleepiness beginning proximate in time to service. (b.) Whether the current condition is at least as likely as not (1) proximately due to a different medical condition, or (2) aggravated beyond its natural progression by a different medical condition. If so, the examiner is asked to identify the primary medical condition. The examiner should particularly address each of the medications for the service-connected disabilities, and address whether the Veteran’s weight-gain (or any fluctuations) were caused by medication use and, thereby worsened his sleep apnea. Corey Bosely Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Breckenridge, 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.