Citation Nr: 21025146 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 17-23 702 DATE: April 27, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1998 to June 2002 and from June 2003 to June 2006 with National Guard service from June 2002 to June 2003 and from June 2006 to December 2010. The Veteran appealed a January 2019 decision of the Board of Veterans’ Appeals (Board) to the United States Court of Appeals for Veterans Claims (Court) in regard to entitlement to service connection for OSA. Pursuant to a Joint Motion for Remand (JMR), the Court, in a November 2019 Order, vacated the Board’s January 2019 decision and remanded the matter to the Board to ensure compliance to the terms of the JMR. The matter was remanded in February 2020 to cure the deficiencies outlined in the JMR. Entitlement to service connection for OSA is remanded. Unfortunately, the matter must again be remanded for proper compliance with the JMR and the February 2020 remand directives. The February 2020 remand directed the Agency of Original Jurisdiction to obtain an addendum opinion that determined whether it is at least as likely as not that the Veteran’s OSA is: a) etiologically related to service to include chemical exposure, b) proximately due to the Veteran’s service-connected disabilities, c) aggravated by his service-connected disabilities, and d) a chronic multi-symptom illness or a manifestation thereof characterized by overlapping symptoms. The addendum opinion was obtained in April 2020, with further addendum opinions obtained in July 2020. Those opinions are inadequate for decision-making purposes. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stegall v. West, 11 Vet. App. 268, 271 (1998). The examiner stated that the Veteran’s OSA was less likely than not related to chemical exposure, and the only supporting rationale was that if chemical exposure had been severe enough to cause OSA, that one would also expect additional respiratory conditions, of which there are none in the record. The examiner then concluded that it “could not be determined the condition of OSA is either due to or the result of the chemical disturbance.” The examiner’s rationale is not sufficiently supported by medical rationale, and is therefore conclusory. Further, it is unclear whether the examiner is saying that an opinion cannot be provided when she stated that it “could not be determined.” The examiner also found that the Veteran’s OSA is less likely than not proximately due to service-connected disabilities, but beyond summarizing medical evidence, the only recognizable rationale is that his OSA had its onset 8 years after service. Such rationale is not sufficient for the conclusion offered. With regard to whether the Veteran’s condition is an undiagnosed illness, the examiner did not phrase her opinion using the appropriate legal standard of “at least as likely as not”, and also states that the sleep apnea condition could be due to PTSD. However, the examiner opined that the Veteran’s OSA was less likely than not aggravated by his service-connected disabilities, without addressing the prior conflicting statement. With regard to whether the psychiatric disability aggravated the OSA, the examiner’s rationale for a negative nexus opinion was that the Veteran’s OSA had improved prior to the effective date of service-connection. That does not address whether a psychiatric disability aggravated OSA. Further, with regard to whether his service-connected disabilities aggravated OSA, the examiner repeatedly notes that a review of medical literature was the main basis for her opinion, but does not provide citation to any medical literature relied upon. Given the above, an addendum opinion is necessary on remand. Id. The matter is REMANDED for the following action: 1. Forward the record and a copy of this remand to a suitably qualified clinician other than the one who provided the April 2020 and July 2020 opinions for completion of an addendum opinion. The examiner must review the entire record and consider the Veteran’s lay statements as to onset. The examiner should provide an opinion as to whether: (a.) It is at least as likely as not (50 percent or greater probability) that the Veteran’s OSA is etiologically related to his active service, to include chemical exposure. (b.) It is at least as likely as not (50 percent probability or greater) that any current OSA is proximately due to, or the result of, the Veteran’s service-connected disabilities. Each service-connected disability should be addressed. (c.) It is at least as likely as not (50 percent probability or greater) that any current OSA is aggravated beyond the natural progress of the disease by the Veteran’s service-connected disabilities. Each service-connected disability should be addressed. (d.) The examiner should also provide an opinion as to whether it is as likely as not (50 percent probability or greater) that the Veteran’s OSA is, or is a manifestation of, a medically unexplained chronic multi-symptom illness, i.e., a diagnosed illness with no conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features, such as sleep disturbances, fatigue, and signs and symptom of upper or lower respiratory systems. A complete rationale should accompany any conclusion reached. The provider should cite to medical principles and literature when possible and indicate the literature upon which he or she relied. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Baker, 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.