Citation Nr: 21029103 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 11-29 541 DATE: May 12, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 1975 to June 1995. He died in October 2019, and the appellant is the Veteran's surviving spouse. In April 2021, the Veteran's representative filed a motion to dismiss the appeal and return the pending claim to the Agency of Original Jurisdiction (AOJ) for adjudication. However, the motion is denied, as the Board has jurisdiction to adjudicate the appellant's pending claim. The Board notes that the substitution benefits apply in this instant case. In a December 2020 notification letter, the AOJ recognized the appellant as a substitute claimant for the Veteran's claims on appeal that were pending when he died. Entitlement to service connection for sleep apnea is remanded. The Board finds that the matter must be remanded, as the June 2019 VA examination is inadequate for adjudicative purposes. According to the examiner's rationale, he stated that "[t]here is no diagnostic criteria that can be applied to a history to determine if OSA exists or existed at some point in the past, and any attempt to do so is pure speculation." While the Board acknowledges that a VA medical examination is not inadequate merely because the medical examiner states he cannot reach a conclusion without resort to speculation, see Jones v. Shinseki, 23 Vet. App. 382, 391 (2010), a VA examination is considered inadequate where the examiner fails to articulate "a reasoned explanation" of his conclusion that no opinion is possible without resort to mere speculation. Here, the examiner provided a negative medical opinion because a prior study was not done in service and failed to provide an etiology as to the Veteran's obstructive sleep apnea. The examiner also indicated that the Veteran's sleep apnea diagnosis occurred 24 years after service, but private treatment records indicate that the Veteran underwent a sleep study and was diagnosed with sleep apnea in 2007, which was approximately 12 years after service. The rationale provided by the VA examiner is based on inaccurate facts and therefore is inadequate. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (holding that medical opinions based on incomplete or inaccurate factual premise are not probative). Additionally, regarding the examiner's secondary service connection opinion, he opined that he finds "no condition that is possible of aggravating OSA beyond its natural course." However, no rationale was provided. Therefore, the matter is remanded for an additional examination. The matters are REMANDED for the following action: 1. Obtain an opinion from a pulmonologist or other similarly qualified sleep specialist to determine the nature and etiology of the Veteran's obstructive sleep apnea. The examiner should opine to the following: Whether it is at least as likely as not (50 percent or greater possibility) the Veteran's sleep apnea had its onset in service or is etiologically related to service. The examiner should specifically explain why or why not the Veteran's description of difficulty sleeping and daytime fatigue during service represented the onset and/or initial manifestation of sleep apnea. Whether it is at least as likely as not that the Veteran's sleep apnea is (1) caused by the service-connected disabilities, to include hypertension, or (2) that the Veteran's service-connected disabilities, to include hypertension has caused additional functional impairment of the obstructive sleep apnea (e.g., a worsening of sleep apnea symptoms beyond those expected by the baseline level of disability, even if temporary). The expert pulmonologist should note that the Veteran is deemed credible and should consider the Veteran's lay statements in rendering an opinion. In doing so, the examiner should consider the following: July 1995 Report of Medical History, reporting frequent trouble sleeping and a hand-written note indicating sleeping trouble in October 1991; July 2007 private treatment record, noting that the Veteran underwent a sleep study the year prior and documenting his symptoms. Additionally, the Veteran's treating physician stated that "sleep apnea may be a contributing factor to hypertension"; and March 2017 hearing testimony from the Veteran testifying to sleeping problems since service, as well as testimony from the appellant stating that she noticed the Veteran's severe snoring and stopping breathing in the early 1990s. The Board notes that in a recent decision, the United States Court of Appeals for Veterans Claims held that the term "aggravation" requires that a service-connected disability condition causes a "functional increase in the severity" of the nonservice-connected disability (OSA). Garner v. Tran, 33 App. Vet. 241 (2021). A complete rationale for all medical opinions is required. The examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In doing so, the medical professional 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. 2. Thereafter, readjudicate the claim. If any benefit sought on appeal remains denied, furnish the appellant with a supplemental statement of the case and allow an appropriate period of time to respond. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Adeleke, T. 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.