Citation Nr: 21025630 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 18-17 144 DATE: April 28, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (formerly listed as sleep disturbances) is remanded. REASONS FOR REMAND At the outset the Board acknowledges that the claim for entitlement to service connection for a dental disorder for treatment purposes was denied in a November 2015 rating decision. Despite the filing of a timely notice of disagreement in August 2016, a timely statement of the case (SOC) was not issued. As such, in June 2019 the Board took jurisdiction over the claim under Manlincon v. West, 12 Vet. App. 238 (1999), for the sole purpose of requesting that the RO issue a SOC. A SOC was issued in October 2020. The Veteran did not submit a substantive appeal to this SOC, and as such this issue has not been appealed to the Board and is not before the Board. The Board remanded the issue on appeal in June 2019 to confirm a current diagnosis involving sleep disturbances and to obtain a medical opinion on a direct theory of entitlement. An August 2020 sleepy study report illustrates a diagnosis of obstructive sleep apnea (OSA). A VA examiner provided an opinion in October 2020. The examiner opined that the Veteran’s OSA is not related to his military service and that his OSA is more likely due to his weight and body mass index (BMI). In a December 2020 Brief, the Veteran’s representative argued that the Veteran’s service-connected disabilities caused his increased BMI and given that the VA examiner opined that the Veteran’s BMI caused his sleep apnea, an opinion on a secondary theory of entitlement should be secured. As a new theory has been raised by the record the Board finds that a remand is needed for an addendum opinion. The matter is REMANDED for the following action: Forward the claim file to the VA examiner that provided the opinion in October 2020, or other appropriate clinician, so that he may provide an addendum opinion with detailed rationale. If the October 2020 VA examiner is unavailable, and another appropriate clinician is selected to opine as to below, scheduling an examination is left to the discretion of that selected examiner. This examination can be in person or virtual. The examiner should review the claim file (including this remand) and note such review was conducted. Following review of the claims file and examination of the Veteran, if such is found to be warranted by the examiner, the examiner should provide opinions that respond to the following: (a.) Whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran’s sleep apnea manifested during active service; or is otherwise related to an event, injury, or disease incurred during active service. (b.) Whether it is at least as likely as not that the Veteran’s sleep apnea is caused by his service-connected disabilities, to include his service-connected radiculopathy of the bilateral lower extremities, bilateral ankle disabilities, bilateral knee disabilities, and low back disability. (c.) Whether it is at least as likely as not that the Veteran’s sleep apnea was aggravated (i.e. worsened) by his service-connected disabilities, to include his service-connected radiculopathy of the bilateral lower extremities, bilateral ankle disabilities, bilateral knee disabilities, and low back disability. Further, the examiner should also opine whether the Veteran’s service-connected disabilities caused, in whole or in part, his obesity. If the examiner finds that the Veteran’s service-connected disabilities caused him to become obese, either in whole or in part, then the examiner must opine whether: (1) obesity was a substantial factor in causing or chronically worsening the Veteran’s OSA; and, (2) whether his OSA would not have occurred or chronically worsened if but for the obesity caused by his service-connected disabilities. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Talamantes, 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.