Citation Nr: 21029044 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 19-31 309 DATE: May 12, 2021 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 2003 to May 2004. His awards and decorations from this period of service include the Combat Action Badge. The Veteran also had a period of active duty for training (ACDUTRA) from October 1997 to March 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2020, the Board denied service connection for sleep apnea, to include as secondary to service-connected PTSD. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a January 2021 Order, the Court granted a Joint Motion for Remand (Joint Motion) filed by the parties to vacate and remand the March 2020 Board decision. 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected PTSD In the January 2021 Joint Motion, the parties agreed that the Board erred by failing to consider a May 2019 VA addendum medical opinion, to include addressing whether the opinion remedied deficiencies found in an April 2019 VA medical opinion. In an April 2019 VA medical opinion, the examiner opined that the Veteran's obstructive sleep apnea was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In so finding, the examiner stated that there was no evidence that the Veteran complained of frequent trouble sleeping, still feeling tired after sleeping, or having headaches during his period of active duty. However, in a January 2004 post-deployment health assessment, the Veteran reported having headaches, difficulty breathing, and still feeling tired after sleeping. As such, it appears that the opinion was based on an inaccurate or incomplete factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (finding that a medical opinion based on incomplete or inaccurate factual premises are not probative). In a May 2019 VA addendum medical opinion, the examiner stated that frequent trouble sleeping can be the basis of many conditions such as anxiety, pain, insomnia, and fear; however, the examiner also stated that frequent trouble sleeping is not a cause of sleep apnea. In addition, the examiner stated that the Veteran's medical records contained no further evidence to link the Veteran's current sleep apnea to his military service. Nevertheless, the examiner did not address the Veteran's January 2004 post-deployment health assessment, which as discussed above, documented potentially relevant symptoms. Moreover, the Board notes that the April 2019 and May 2019 VA medical opinions did not address the lay statements of record regarding the onset and ongoing nature of the Veteran's symptoms. See, e.g., October 2019 correspondence. In an August 2019 VA medical opinion, the examiner opined that the Veteran's sleep apnea was less likely than not proximately due to or the result of the Veteran's service-connected PTSD. The examiner opined the Veteran's sleep apnea was less likely as not aggravated beyond its natural progression by his service-connected PTSD. However, the examiner's supporting rationale was general in nature and did not address this specific Veteran's case. For example, the examiner stated that, although some studies have shown that sleep apnea and mental health conditions can co-exist, there is no credible medical evidence that the degree of sleep apnea can be affected by or otherwise aggravated by any mental health condition. Based on the foregoing, a remand is necessary to obtain an additional opinion regarding the nature and etiology of the Veteran's sleep apnea. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes to provide a medical examination or opinion, it must ensure that the examination or opinion is adequate). Lastly, in March 2021, the Veteran requested to have his case remanded to the Agency of Original Jurisdiction (AOJ) for review of the additional evidence he submitted in support his appeal, including additional lay statements. Therefore, in order to comply with the Veteran's request, the Board must remand the matter on appeal for readjudication. 38 C.F.R. § 20.1305. The matters are REMANDED for the following action: 1. Obtain a VA medical opinion from an appropriate clinician regarding the etiology of the Veteran's sleep apnea. The entire claims file must be made available to the examiner. (a) The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's sleep apnea had its onset in service or is otherwise causally or etiologically related to his active duty service. In providing this opinion, the examiner must address the January 2004 post-deployment health assessment in which the Veteran reported having headaches, difficulty breathing, and still feeling tired after sleeping. The examiner should also address the lay statements of record from the Veteran, his mother, significant other (a registered nurse), and fellow service members regarding the onset and ongoing nature of the Veteran's symptoms of snoring, fatigue, and gasping for breath during sleep. See, e.g., October 2019 and March 2021 correspondence. (b) The examiner should also provide an opinion as to whether the Veteran's sleep apnea was caused or aggravated by his service-connected PTSD. Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected conditions. A complete rationale for any opinion offered should be provided. 2. After completing the above action and any other development as may be indicated as a consequence of the action taken in the preceding paragraph, the claim should be reviewed by the AOJ on the basis of additional evidence. See March 2021 correspondence (Veteran requested initial AOJ review of the additional evidence submitted in support of his appeal). If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Wulff, 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.