Citation Nr: 21024965 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 15-41 262A DATE: April 27, 2021 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected temporomandibular joint disfunction (TMJ), is remanded. REASONS FOR REMAND The Veteran had active service from January 1977 to January 1982. The Veteran testified at a hearing before the undersigned in January 2021. A transcript of the hearing has been associated with the claims file. In a separate appeal, in February 2020 the Board remanded the issue of entitlement to a total disability rating for compensation purposes based upon individual unemployability (TDIU). TDIU was granted, effective April 2, 2008. See March 2021rating decision. Supplemental Statements of the Case (SSOC) related to TDIU were issued in March and April 2021; the Veteran still has the opportunity to respond to the SSOC and the TDIU claim is not before the Board at this time. Entitlement to service connection for sleep apnea, to include as secondary to service-connected TMJ, is remanded. The claim must be remanded because the medical opinions of record are inadequate. A September 2013 positive private medical opinion is inadequate because the examiner referred to studies showing a possible connection but did not comment on how the studies applied to the facts of this Veteran’s specific case. A negative January 2015 VA opinion is also inadequate. The rationale for the secondary opinion did not include any consideration of the positive private opinion, characterized the sleep apnea as obstructive rather than central, and did not address aggravation. A July 2018 response to a VA request to amend VA examination report in response to concerns raised by the Veteran was inconsistent. On remand, outstanding treatment records must be obtained. The record before the Board includes notations of non-VA treatment records that are scanned into VISTA Imaging; however, the records themselves are not associated with the file. Any outstanding private treatment records must be obtained as well. It appears the Veteran has received treatment from several different providers, but the related treatment records have not been obtained. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file complete treatment records scanned into VISTA Imaging. 2. Ask the Veteran to complete a VA Form 21-4142 for Drs. S.W., G.T., C.W., J.R., and G.G. Make two requests for the authorized records from Drs. S.W. and G.T., unless it is clear after the first request that a second request would be futile. 3. Thereafter, obtain an opinion from an appropriate clinician regarding the likely etiology of the Veteran's sleep apnea. Copies of all pertinent records must be made available to the examiner for review. If the examiner determines that the opinions cannot be provided without an examination, an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) should be scheduled. The examiner must answer the following: (a) Is it at least as likely as not that the Veteran's sleep apnea is related to an in-service injury, event, or disease? In rendering the opinion, the examiner should comment on the Veteran’s reports of sluggishness in service and the prior medical opinion. (b) If the Veteran's sleep apnea is not directly related to service, is it at least as likely as not (1) proximately due to service-connected TMJ, or (2) aggravated by the Veteran’s service-connected TMJ. Aggravation here is defined as any increase in disability. In rendering the examiner must comment on the medical literature, prior medical opinions associated with the claims file, and discuss any significance of the notation of central sleep apnea in the prior VA medical opinion. A complete rationale should be provided for all opinions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge; the examiner's own expertise, or; whether additional facts are required and note what, if any, additional evidence would permit such an opinion to be made. 3. Confirm that the VA medical opinions provided comport with this remand, specifically that the standard for the secondary aggravation opinions is any increase in disability, not the standard of beyond the natural progression as noted on the examination form itself. If not, get an addendum. M.E. LARKIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Robert J. Burriesci, 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.