Citation Nr: 21027734
Decision Date: 05/06/21	Archive Date: 05/06/21

DOCKET NO. 16-49 170
DATE: May 6, 2021

REMANDED

Entitlement to service connection for sleep apnea is remanded.

REASONS FOR REMAND

This matter was most recently before the Board of Veterans' Appeals (Board) in January 2021, when it was remanded for a new opinion addressing aggravation in the context of secondary service connection in accordance with the terms of a September 2020 Joint Motion for Partial Remand granted by the United States Court of Appeals for Veterans Claims.  The Agency of Original Jurisdiction obtained a new opinion in March 2021.  Unfortunately, the Board finds the March 2021 opinion is inadequate to make a fully informed decision on the Veteran's claim.  Specifically, the March 2021 examiner provided a conclusory opinion regarding aggravation with little to no rationale, stating only there is "no evidence" the Veteran's service-connected disabilities or the medications prescribed for the Veteran's service-connected disabilities aggravate obstructive sleep apnea and/or central sleep apnea; however, the Board notes there is evidence that suggests medications prescribed for the Veteran's service-connected lumbar spine disability may have aggravated his sleep apnea.  In December 2012, a VA pulmonologist, R.K.F., M.D., entered a lengthy treatment note in the Veteran's records after a sleep medicine consult.  Although R.K.F., M.D., determined it was unlikely the medications prescribed for the Veteran's service-connected lumbar spine disability caused his sleep apnea, R.K.F., M.D., noted the medications "might potentially make his sleep apnea worse."  The Veteran's initial January 2013 VA examiner endorsed this opinion, noting it is consistent with medical literature.  Yet, the December 2012 assessment was not addressed in the March 2021 examiner's rationale or even referenced in his report, highlighting the inadequacy of the aggravation opinion contained therein.

The matter is REMANDED for the following action:

Obtain a new opinion regarding the Veteran's service connection claim for sleep apnea that addresses whether the Veteran's obstructive and/or central sleep apnea have been at least as likely as not (50 percent probability or greater) aggravated by a service-connected disability or medications prescribed for such disability, to include, but not limited to, Hydrocodone, Trazadone, Sertraline, Gabapentin, Lamictal, and/or Wellbutrin.

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The examiner must be advised aggravation means an increase in the severity of the underlying disability beyond its natural progression.  It must be noted there is no requirement that such increase be permanent in nature in the context of secondary service connection.  Further, a mere conclusion regarding aggravation without a separate rationale is not sufficient.  The rationale must at a minimum discuss the December 2012 sleep medicine consult note prepared by pulmonologist, R.K.F., M.D., that indicates the medications prescribed for the Veteran's service-connected lumbar spine disability "might potentially make his sleep apnea worse."  

The examiner must be further advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion.  If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so.

 

 

M. HYLAND

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	L. S. Kyle, 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.