Citation Nr: 21024255 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 17-34 730 DATE: April 22, 2021 REMANDED Entitlement to service connection for sleep apnea to include as secondary to service-connected allergic rhinitis is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from April 1982 to April 1986. The matter is on appeal to the Board of an August 2017 rating decision of the Agency of Original Jurisdiction (AOJ). In a March 2019 decision, the Board denied service connection for sleep apnea, including as secondary to service-connected allergic rhinitis, and denied increased ratings for right knee disability and allergic rhinitis. In the same decision, the Board remanded other increased rating claims and granted a separate rating for a service-connected right knee injury. The Veteran appealed the Board’s March 2019 decision to the United States Court of Appeals for Veterans Claims (Court) and expressly limited his arguments to the Board’s denial of benefits for sleep apnea and increased rating for right knee disability. The Court dismissed the appeal as to the abandoned issues for the denial of an increased rating for allergic rhinitis and the favorable finding of a separate rating for right knee injury. In September 2020, the Court issued a Memorandum Decision to AFFIRM the portion of the Board’s decision denying an increased rating for right knee disability and VACATE the portion of the Board’s decision denying service connection for sleep apnea, and REMAND the vacated matter to the Board for further proceedings, consistent with the Court’s decision. Sleep Apnea In denying service connection for sleep apnea, the Board relied on an October 2017 VA examination report, in which the examiner provided a negative nexus opinion, finding the appellant was first diagnosed with mild sleep apnea in August 2015. However, citing Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Secretary conceded that the Board failed to address appellant’s lay report of a diagnosis of sleep apnea “about ten to fifteen years” prior to his September 2017 statement. See Brief of Appellee at 14. The Court accepted the Secretary’s concession and agreed that the Board failed to make a competency determination regarding the appellant’s purported diagnosis of sleep apnea prior to the August 2015 sleep study. See Memorandum Decision at 4. Additionally, upon review of the October 2017 VA examination report, the Board observes that the opinion was rendered based on review of existing medical information without an in-person examination. Although the method used is appropriate, the Board notes that the examiner’s opinion does not reflect consideration of the Veteran’s lay reports of symptoms and history. Specifically, the Veteran states that during boot camp, he was “exposed to environmental allergens which caused immediate breathing problems.” See Statements in Support of Claim (VA Form 21-4138) dated September 2017. He reports that his symptoms continued since basic training and that he “was diagnosed with sleep apnea about ten to fifteen years ago, but only recently began seeking treatment.” Id. Alternatively, the Veteran “believes his sleep apnea has developed as a result of his allergic rhinitis” which also developed in basic training. See Addendum to Notice of Disagreement dated September 2017. Thus, remand is warranted to obtain an addendum opinion which sufficiently addresses the Veteran’s contentions, reported history and symptomatology. Furthermore, although the October 2017 examiner rendered an opinion for direct and secondary service connection, the examiner did not adequately address aggravation of non-service connected disabilities as set out under 38 C.F.R. § 3.310. See El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). Thus, in order to ensure that his claim is afforded full consideration, an addendum opinion should be obtained. By this remand, the Board makes no determination, express or implied, concerning the credibility of any lay statements on file. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from a qualified medical professional to determine the nature and etiology of the Veteran’s claimed sleep apnea. The electronic claims file should be made accessible to the examiner along with any other information the medical professional deems pertinent. If the reviewer determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. Based on the review of the record, the examiner should provide an addendum opinion on the following: a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s claimed sleep apnea began during active service or is related to service? b) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea is caused by service-connected allergic rhinitis? c) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s sleep apnea is aggravated by service-connected allergic rhinitis? In rendering the opinion, the examiner is asked to consider medical records to include the October 2017 VA opinions. The examiner is also asked to consider lay evidence of record. Specifically, the Veteran asserts being “exposed to environmental allergens which caused immediate breathing problems” and that his symptoms have continued since basic training. He also reports being “diagnosed with sleep apnea about ten to fifteen years ago” prior to the August 2015 sleep study. See Statement in Support of Claim dated September 2017. A complete rationale for all opinions is requested. 2. Upon completion of the requested development and any additional development deemed appropriate, adjudicate the claims on appeal. If the determination remains unfavorable, the Veteran and his representative should be furnished a supplemental statement of the case which addresses all relevant evidence. The Veteran and his representative should be afforded the applicable time period in which to respond. Then, return the case to the Board. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. An, 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.