Citation Nr: 21029936 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 16-33 825 DATE: May 17, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. REASONS FOR REMAND The Veteran served on active duty from August 2006 to January 2010. He contends that his OSA began in service or, alternatively, is secondary tomeaning caused or aggravated byhis service-connected hypertension. In October 2015, he underwent a VA examination to determine the nature and etiology of his claimed OSA. The examiner opined that the Veteran's OSA is less likely than not related to his active duty service because it was not diagnosed until after his military service and, instead, is from aging and weight gain. The impaired sleep that was noted during his December 2009 VA examination was in reference to insomnia due to anxiety, not OSA. In February 2016, the Veteran submitted a lay statement from J.A. who was deployed with the Veteran from 2007 to 2009. J.A. recalled waking up countless times in the middle of the night to ensure the Veteran was breathing and would hear him choking and gagging in his sleep at least four times a week. Following submission of that statement, the local Regional Office (RO) obtained an addendum opinion in June 2016 addressing this additional evidence. The VA examiner again determined the Veteran's OSA is less likely than not related to his military service because, although J.A.'s statement indicated a history of possible apneic episodes in service, the mere presence of apneic episodes is not evidence of a diagnosis of OSA. This VA examiner explained that the minimum requirement for a diagnosis of OSA is an apneic hypopnea index (AHI) of 5 measured by polysomnography (a sleep study). An AHI lower than 5 is normal, and therefore it is normal to experience apneic episodes while asleep. For example, a person can stop breathing with choking and gagging sounds every 15 minutes while asleep resulting in an AHI of 4, and this would be normal and not a diagnosis of OSA. Therefore, explained this VA examiner, the mere presence of symptoms that may be associated with apnea, such as those described in J.A.'s statement, is not sufficient for a diagnosis of OSA in service. In his subsequent July 2016 Substantive Appeal to the Board (on VA Form 9), the Veteran raised the additional issue of entitlement to service connection for his OSA on a secondary basis. Specifically, he contended that his OSA is caused or aggravated by his service-connected hypertension. An addendum medical opinion addressing this other posited theory of entitlement accordingly was obtained in December 2016; however, the Board finds it inadequate for adjudication purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007); 38 C.F.R. § 3.159(c)(4). Namely, although the examiner addressed both the causation and aggravation aspects of the theory of secondary service connection, he cited the same rationale. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) Specifically, this additional December 2016 VA examiner opined, that although the Veteran is service connected for hypertension, it does not have the capacity to cause physical obstruction in the oropharynx and, therefore, cannot cause nor aggravate OSA. The U. S. Court of Appeals for Veterans Claims (CAVC) has held that a VA medical opinion should not combine causation and aggravation when addressing secondary service connection, as they are independent concepts requiring separate findings and rationale. Atencio v. O'Rourke, 30 Vet. App. 74, 90-91 (2018). Consequently, the Board finds the December 2016 addendum medical opinion inadequate since it does not comport with the holdings in Atencio. Two opinions are required for secondary-service-connection claims: 1. Is the claimed disorder "caused by" or "due to" the service-connected disability? AND 2. Is the claimed disorder "aggravated by" the service-connected disability (Allen Aggravation)? An opinion that something "is not related to" or "is not due to" does not answer the question of aggravation. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). As a result, even more supplemental medical comment is needed addressing this additional possibility and including in terms of whether the service-connected hypertension is aggravating the Veteran's OSA. Accordingly, this claim is REMANDED for the following still additional development and consideration: 1. Obtain another supplemental (addendum) medical opinion regarding the etiology of the Veteran's OSA, which he is now alleging is secondary to his service-connected hypertension. If needed to respond to the questions being asked, schedule him for another VA examination to obtain this needed additional comment concerning the nature and etiology of this claimed disability. All indicated testing and evaluation must be completed and the findings reported in detail. All relevant medical and other records must be made available to the examiner for review. After reviewing the claims file, including this remand, the examiner is asked to answer the following questions: If, as the prior VA examiner concluded, the Veteran's service-connected hypertension does not cause his OSA, is it alternatively at least as likely as not (a 50 percent probability or greater) that his service-connected hypertension is aggravating his OSA? *If, as the prior December 2016 VA examiner concluded, the Veteran's service-connected hypertension does not have the capacity to cause physical obstruction of his oropharynx and, therefore, cannot cause nor aggravate OSA, please provide more discussion of why this necessarily means the service-connected hypertension cannot aggravate the OSA, so in addition to the earlier opinions obtained in October 2015 and June 2016 citing aging and weight gain as the most likely causes of the Veteran's OSA. If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of OSA by the service-connected hypertension. In making this determination, the examiner should consider i.) the February 2016 J.A. Statement and, ii.) the treatise evidence more recently cited in the May 2021 Appellant's Brief. The Veteran is competent to report his symptoms and history, and these reports must be acknowledged and considered in formulating responses. If the examiner rejects the Veteran's reports of symptomatology, a reason for doing so must be provided. It is essential the examiner provide explanatory rationale, whether responding favorably or unfavorably, preferably citing to specific evidence in the file supporting conclusions and/or accepted medical authority. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Mukherjee 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.