Citation Nr: 21026744 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 17-06 799 DATE: May 3, 2021 REMANDED Entitlement to service connection for sleep apnea, as secondary to bilateral temporomandibular joint dysfunction (TMJ) and/or malunion or nonunion of the maxilla, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from January 1983 to December 1992. During his period of service, he earned the National Defense Service Medal, Meritorious Unit Commendation, Good Conduct Medal (2nd), and Battle "E" Ribbon. In March 2020, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This case was previously remanded in April 2020 for further development. Subsequently, in a November 2020 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for bilateral temporomandibular joint dysfunction (TMJ) and malunion or nonunion of the maxilla (previously claimed as residuals of maxillofacial surgery); thus, that issue is no longer for appellate consideration. After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the Veteran's claim of entitlement to sleep apnea, as secondary to bilateral TMJ and/or malunion or nonunion of the maxilla. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Entitlement to service connection for sleep apnea Pursuant to the April 2020 Board remand, a medical opinion was obtained in May 2020. The VA examiner opined that it was less likely than not that the Veteran's sleep apnea was incurred in or caused by service, as the Veteran's jaw disability preexisted service; thus, a nexus could not be established. As to secondary service connection, the VA examiner opined that it was less likely than not that the Veteran's sleep apnea was proximately due to or the result of his service-connected jaw disability. In support of the opinion, the examiner stated that the two conditions were not medically related, as sleep apnea was a separate entity and unrelated to residuals of maxillofacial surgery. The examiner explained that obesity is the best documented risk factor for OSA and progressively increases as the body mass index and associated markers, such as neck circumference and waist-to-hip ratio, increase. The examiner noted that the Veteran's body mass index (BMI) was 30.8 at the time of his sleep apnea diagnosis; thus, a nexus could not be established. The examiner further opined that it was not at least as likely as not that the Veteran's sleep apnea was aggravated beyond its natural progression by his service-connected jaw disability. In support of the finding, the examiner explained that while the Veteran reported snoring immediately after the surgery, the Veteran's spouse did not observe snoring and apneas until 1986 at the time of his pre-deployment physical. Unfortunately, the Board finds that these opinions do not substantially comply with the Board's April 2020 remand directives. Stegall v. West, 11 Vet. App. 268 (1998); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). In this regard, although examiner opined that the Veteran's sleep apnea was not at least as likely as not aggravated beyond its natural progression by his service-connected jaw disability, failed to provide rationale for the finding. Specifically, the examiner appears to use a statement made by the Veteran's spouse as a basis to reject the Veteran's credible testimony that he began experiencing an "embarrassing level of snoring" after undergoing maxillofacial surgery during service. Consequently, the Board finds that a remand is necessary to obtain a new opinion relating to the claim of entitlement to service connection for sleep apnea. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination with the appropriate medical examiner to determine the nature and etiology of his sleep apnea. The examiner must review pertinent documents in the Veteran's claims file in conjunction with the examination. This must be noted in the examination report. All tests and studies deemed necessary by the examiner should be performed. The examiner should state whether it is at least as likely as not (a 50percent probability or greater) that the Veteran's sleep apnea (i) is caused by the Veteran's jaw disability, to include bilateral temporomandibular joint dysfunction (TMJ) and/or malunion or nonunion of the maxilla (ii) is aggravated (i.e., permanently worsened beyond the natural progression) by the Veteran's jaw disability, to include bilateral TMJ and/or malunion or nonunion of the maxilla. In providing the opinion, the examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. Rationale for all requested opinions shall be provided. If the examiner(s) cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner(s) shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tracy O. Joseph, 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.