Citation Nr: 21025278 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 12-04 679 DATE: April 27, 2021 REMANDED Service connection for a sleep disorder to include chronic fatigue syndrome (CFS) and obstructive sleep apnea (OSA), to include as secondary to service-connected asthma, posttraumatic stress disorder (PTSD), and residuals, traumatic brain injury (TBI), is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1988 to August 1991, September 2002 to August 2003, August 2004 to August 2005, and from May 2007 to August 2008. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2009 rating decision issued by the Department of Veterans’ Affairs (VA) Regional Office (RO) in Buffalo, New York. This claim was previously before the Board in August 2016, December 2019, and most recently in September 2020. Unfortunately, as will be discussed in more detail below, the Board finds remand is again necessary in order to ensure the Veteran’s substantial compliance with the Board’s September 2020 remand directives and that the Veteran is afforded adequate examinations. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service connection for a sleep disorder to include CFS and OSA, to include as secondary to service-connected asthma, PTSD, and residuals, TBI, is remanded. The Veteran contends he has CFS and/or OSA that was caused by or incurred during service, or in the alternative is secondary to his service-connected asthma, PTSD, and/or residuals, TBI. The Board finds the evidence of record is insufficient to resolve his claim. The Veteran has been afforded multiple VA examinations and addendum opinions based on additional theories of entitlement to service connection raised throughout the pendency of his claim. A VA examination occurred in December 2020 during which the examiner was directed to opine whether the Veteran’s OSA was related to his military service, to include due to exposure to environmental hazards. The examiner opined that the Veteran’s OSA was less likely as not incurred in or caused by environmental hazards from 2007 to 2008. The examiner, however, contradicted herself by also stating as part of the rationale that she could not opine that the Veteran sleep apnea was caused by environmental hazards from 2007 to 2008. Thus, remand is necessary for clarification of this opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The Board also directed a VA examiner opine whether the Veteran’s OSA was caused or aggravated by his service-connected TBI residuals. In December 2020, the examiner opined that it was less likely as not the Veteran’s TBI residuals aggravated his OSA, however, a rationale in support thereof was not offered. Rather, the examiner stated that she could not opine that the Veteran’s OSA was aggravated by anything other than his obesity and craniofacial and upper airway soft tissue abnormalities. The Board finds, however, if an opinion regarding aggravation cannot be rendered, the examiner must explain a reason for said inability. See Jones v. Shinseki, 23 Vet. App. 382, 390-92 (2010). Thus, remand is necessary to obtain the rationale in support of the opinion that OSA was not aggravated by the Veteran’s service-connected TBI residuals and/or the reasoning an aggravation opinion cannot be provided. See Horn v. Shinseki, 25 Vet. App. 231, 240-42 (2012). The Veteran previously contended that his OSA was secondary to his service-connected PTSD. A VA opinion addressing this theory of entitlement was obtained in September 2019. The examiner opined that the Veteran’s OSA was less likely than not caused or aggravated by his service-connected PTSD. The examiner reasoned that while sleep disturbances are commonly symptoms of mental health conditions including depression and that PTSD has been shown to have a statistical association with OSA, an actual cause and effect association between PTSD and OSA has not been established. The examiner, however, failed to provide a rationale in support of the aggravation opinion rendered. The examiner also failed to address the Veteran’s specific PTSD symptoms including sleep disturbance (which was noted to be the most prominent impairment) when determining whether the Veteran’s OSA is aggravated by his PTSD. As such, remand is necessary to obtain an opinion, including rationale, whether the Veteran’s OSA was aggravated by his service-connected PTSD. See Horn, 25 Vet. App. at 240-42. Consequently, this claim is remanded to obtain additional VA opinions. The matters are REMANDED for the following action: 1. Return the entire claims file and this remand to the December 2020 VA examiner, if available, otherwise to another appropriate examiner for review. The necessity of an in-person examination is left to the discretion of the examiner. The examiner shall render an addendum opinion, including rationale, addressing the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) the Veteran’s obstructive sleep apnea was caused or incurred during service, to include exposure to environmental hazards such as burn pits during service in Southwest Asia; (b.) Whether it is at least as likely as not (50 percent or greater probability) the Veteran’s obstructive sleep apnea was aggravated by his service-connected residuals of a TBI; and In so opining, the examiner is directed to address and consider the Veteran’s TBI residuals including headaches. The examiner is also directed to address and consider the Veteran’s medical articles submitted in September 2019 discussing obstructive sleep apnea and TBI. (c.) Whether it is at least as likely as not (50 percent or greater probability) the Veteran’s obstructive sleep apnea was aggravated by his service-connected PTSD. In so opining, the examiner is directed to address and consider the Veteran’s lay statements of sleep disturbance and the Veteran’s PTSD symptoms related to sleep disturbances including the notation of sleep disturbance being the most prominent impairment. The examiner is also directed to address and consider the Veteran’s medical articles submitted in September 2019 discussing obstructive sleep apnea and PTSD. The VA examiner is cautioned that the term “aggravated,” as used in 38 C.F.R. § 3.310(b), does not require that there be “permanent worsening” of the nonservice-connected disability. Instead, secondary service connection is warranted for “any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence.” See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). The examiner must provide a complete rationale for any opinion expressed, based on the examiner’s clinical and medical expertise; established medical principles; and references to the evidence of record, as appropriate. If any opinion cannot be expressed without resort to speculation, ensure that the examiner so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 2. After the above development, and any other development deemed necessary, readjudicate the claims. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.C. Allen, 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.