Citation Nr: 21025989 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 19-06 687 I DATE: REMANDED Entitlement to service connection for obstructive sleep apnea as secondary to service connected gastroesophageal reflux disease (GERD) and/or asthma is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from April 1982 to August 1982, November 1985 to May 1995, and October 2001 to August 2002. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an October 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction of this appeal is currently with the RO in Philadelphia, Pennsylvania. In August 2019, the Board issued a decision denying entitlement to service connection for obstructive sleep apnea. The Veteran subsequently appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2020 Joint Motion for Remand, the Court vacated and remanded the case to the Board for action consistent with the Joint Motion. Service Connection – Obstructive Sleep Apnea As noted above, in its August 2019 Board decision, the Board denied entitlement to service connection for obstructive sleep apnea. In doing so, the August 2019 Board relied upon September 2018 and February 2019 VA etiology opinions. However, the August 2020 Joint Motion found that the VA etiology opinions failed to clearly delineate causation and aggravation, and lacked sufficient rationales for the conclusions reached. Specifically, the Joint Motion found that the September 2018 VA examiner failed to provide any rationale for her opinion that the service-connected asthma did not cause the obstructive sleep apnea and failed entirely to address whether the service-connected asthma did not cause the obstructive sleep apnea. Moreover, the Joint Motion found that the February 2019 VA examiner failed to provide any rationale for her opinion that the medication used to treat the service-connected GERD did not aggravate the obstructive sleep apnea. See El-Amin v. Shinseki, 26 Vet. App. 136 (2013). Accordingly, and in accordance with the August 2020 Joint Motion for Remand, the Board concludes that the September 2018 and February 2019 VA opinions are incomplete to decide the claim, and the Veteran should be afforded a new VA examination to determine the nature and etiology of his claimed obstructive sleep apnea, to include as secondary to service-connected asthma and/or GERD. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his diagnosed obstructive sleep apnea. Any and all indicated evaluations, studies and tests deemed necessary by the examiner should be accomplished. The need for further in-person examination is left to the discretion of the examiner. The examiner should answer the following the questions: (A) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s obstructive sleep apnea was aggravated by his service connected asthma? (B) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s obstructive sleep apnea was aggravated by his service connected GERD, to include medications used to treat his GERD? A rationale should be provided for any opinion offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinion must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician 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. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mariah N. Sim, 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.