Citation Nr: 21026862 Decision Date: 05/03/21 Archive Date: 05/04/21 DOCKET NO. 16-36 716 DATE: May 3, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected gastroesophageal reflux disease (GERD), is remanded. REASONS FOR REMAND The Veteran served in the United States Army from November 1993 to December 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in August 2019, and a transcript of that hearing has been associated with the claims file. The matter was previously remanded by the Board in November 2019 to obtain VA examinations for obstructive sleep apnea, PTSD, and gastroesophageal reflux disease (GERD), which was complied with in January 2020. Subsequently, the RO granted service connection for PTSD and GERD in a July 2020 rating decision, and these issues are no longer on appeal before the Board. The matter was once again remanded in September 2020 to obtain an addendum opinion on the theory of secondary service connection for obstructive sleep apnea from the Veteran's service-connected PTSD, which was complied with in September 2020. The matter of service connection for obstructive sleep apnea is now before the Board for appellate review. 1. Entitlement to service connection for obstructive sleep apnea is remanded. In McLendon v. Nicholson, 20 Vet. App. 70 (2006), the court indicated that there was a four-part test to determine whether an examination was necessary under 38 C.F.R. § 3.159(c)(4). Id at 81. Under this test, VA will provide a medical examination or obtain a medical opinion where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability; and (4) there is insufficient competent medical evidence to make a decision on the claim. Id. In his appellate brief dated December 3, 2020, the Veteran contends that he suffers from obstructive sleep apnea that is related to his service-connected GERD. The Veteran was denied service connection for obstructive sleep apnea in a February 2015 rating decision and a June 2016 Statement of the Case (SOC). In a July 2020 Supplemental SOC, the RO again denied the Veteran's claim for obstructive sleep apnea on the basis that his condition did not occur in or was not caused by service. The RO did not consider whether the Veteran's obstructive sleep apnea is secondary to his service-connected GERD. The Veteran has a current diagnosis of obstructive sleep apnea, meeting McLendon element (1). The Veteran's statement in the December 2020 appellate brief that his obstructive sleep apnea is related to his service-connected GERD provides a basis that satisfies McLendon elements (2) and (3). However, while the Veteran was afforded a VA examination in January 2020, the examiner did not opine on whether the Veteran's PTSD was secondary to his GERD because the Veteran's GERD was not service connected at that time. Because the Veteran's GERD has since been service connected and the Veteran has since raised this secondary theory of causation, the Board finds it necessary to remand for an addendum opinion. Accordingly, the matter is remanded for the following action: 1. Obtain an addendum medical opinion from a qualified medical professional addressing the Veteran's obstructive sleep apnea. The examiner must review the claims file and provide thorough responses to each of the following: (a.) Whether it is at least as likely as not that the Veteran's sleep apnea was caused by his service-connected GERD. (b.) Whether it is at least as likely as not that the Veteran's sleep apnea was aggravated by his service-connected GERD. In rendering this opinion, the examiner must specifically address the study referenced by the Veteran in his December 2020 appellate brief that indicates a positive association between reflux diseases and sleep apnea in veterans. The examiner must provide a complete rationale for all opinions. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.N. Bush, 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.