Citation Nr: 21024191 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 16-24 542 DATE: April 22, 2021 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to posttraumatic stress disorder (PTSD) and/or residuals of a traumatic brain injury (TBI), is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from April 1967 to February 1970, including service in the Republic of Vietnam, with additional National Guard service. Among his decorations are the Purple Heart and the Bronze Star Medal with “V” Device. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision of an agency of original jurisdiction (AOJ) of the Department of Veterans Affairs (VA). Most recently, this matter came before the Board in October 2020. The Board remanded this matter for additional development, specifically to obtain an adequate medical opinion. The Board also remanded the issue of entitlement to a total disability rating due to individual unemployability (TDIU). However, this issue was granted in full by the Board in April 2021, and thus it is no longer before the Board. If the Veteran disagrees with the effective date assigned, he should request review of that decision by filing the appropriate VA form. The Board sincerely regrets the delay, but remand is again necessary to obtain an adequate medical opinion and comply with the Board’s prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The examiner accepted the Veteran’s report of his symptoms in service but stated that these are “subjective only” and that sleep apnea is diagnosed by polysomnography, which was not performed until 2010. However, the key question for the Board in considering direct service connection is not when sleep apnea is diagnosed. Rather, it is whether sleep apnea is etiologically related to an injury, disease, or event in service. A post-service diagnosis is not, standing alone, sufficient grounds to deny direct service connection. Moreover, the examiner’s opinion did not address the correct standard for secondary service connection based on aggravation, as the examiner required “permanent” aggravation. On remand, adequate medical opinions should be obtained that address these deficiencies. Updated VA and private treatment records should also be secured. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. Then obtain an addendum opinion from an examiner other than the June 2020 examiner or December 2020 examiner, preferably a physician, regarding the etiology of the Veteran’s claimed sleep disorder, to include sleep apnea. The claims file should be made available to and should be reviewed by the examiner. No further examination of the Veteran is necessary unless the examiner deems otherwise. For diagnosed sleep apnea, the examiner must opine as to whether it is at least as likely as not (a 50 percent or greater probability) that such disorder: (a) had its onset during active duty or is otherwise related to the Veteran’s service, to include as a result of conceded concussive or other trauma from explosions in Vietnam or conceded herbicide agent exposure therein; (b) is proximately due to a disability of service origin, to include the Veteran’s service-connected PTSD, symptoms related to his TBI residuals, or any disorder related to the Veteran’s service (including as a result of conceded herbicide agent exposure); or (c) has been aggravated (worsened beyond natural progression) by a disability of service origin, to include the Veteran’s service-connected PTSD, symptoms related to his TBI residuals, or any disorder related to the Veteran’s service (including as a result of conceded herbicide agent exposure). Please address each question separately. The examiner is advised that the Board has conceded that the Veteran was exposed to concussive trauma in service when his vehicle drove over land mines, and VA regulations presume that the Veteran was exposed to herbicide agents. In subpart (a) of this question, the examiner should discuss the statements of the Veteran’s wife, which the examiner should accept as credible for purposes of these opinions, that she has witnessed the Veteran’s apneas and restless behavior during sleep since their marriage in 1971, and the Veteran’s testimony, which the examiner should accept as credible for purposes of these opinions, that when he shared a room with three other servicemen in 1968 he was not told by his roommates that he snored, but that immediately after his return from Vietnam his parents informed him that he was snoring loudly. Specifically, the examiner should discuss the lay statements regarding the reported sleep behaviors in service and explain why the reported symptoms do or do not show that it is at least as likely as not that sleep apnea developed in or is otherwise etiologically related to service. See Buddy / Lay Statements Received September 7, 2016; Correspondence Received December 12, 2020. The fact that sleep apnea was not diagnosed until 2010 is not, by itself, a sufficient reason to provide a negative opinion. In addressing sub-parts (b) and (c) of this question, the examiner is advised that it is not necessary that a disorder be service-connected, or even diagnosed, at the time the Veteran’s sleep disorder was incurred to be considered due to or aggravated by another disorder, and reliance on this fact in support of a negative opinion will render it inadequate. In this regard, consider the Veteran’s medical records showing that he is hypertensive and pre-diabetic, along with his conceded herbicide agent exposure (See, e.g., August 2015 and March 2016 VA Treatment Notes).   A complete rationale must be provided for all opinions expressed. If the examiner cannot provide an opinion without resorting to speculation, it is essential that the examiner explain why that is so (e.g., limits of medical knowledge, limits of the examiner’s own expertise, etc.) S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.M. Badaczewski, 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.