Citation Nr: 21031362 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 17-51 737 DATE: May 21, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea, to include as secondary to posttraumatic stress disorder (PTSD) and as due to exposure to Agent Orange and/or hazardous chemicals, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from October 1970 to October 1973, with service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Though it appears that the RO has reopened the claims for service connection for obstructive sleep apnea, the Board must determine on its own whether new and material evidence has been submitted to reopen the claim. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). However, as the Veteran had continuously pursued the claim on appeal since 2014, there has never been a decision that became final. See also 38 C.F.R. § 3.156(b). Thus, the claim is one for entitlement to service connection, rather than a petition to reopen previously denied claim. For the purpose of more accurately reflecting the scope of the Veteran's claim, the issue of service connection for obstructive sleep apnea has been recharacterized as shown on the title page. In May 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ); a transcript is of record. The Veteran's appeal has been advanced on the docket. 38 U.S.C. § 20.902. The Veteran's appeal under the Appeals Modernization Act (AMA) will be addressed in a separate decision. REASONS FOR REMAND Entitlement to service connection for obstructive sleep apnea, to include as secondary to PTSD and as due to exposure to Agent Orange and/or hazardous chemicals. The Veteran contends that his current obstructive sleep apnea is related to his active military service. Specifically, he contends that his sleep apnea is secondary to his service-connected PTSD. See December 2019 VA Form 21-526EZ. He also contends that his sleep apnea is due to exposure to Agent Orange and/or hazardous chemicals while on active duty. See August 2014 Correspondence. While the Board regrets the delay, a remand is necessary to ensure that the Veteran is afforded due process. In this regard, the Board considered whether new and material evidence has been submitted to reopen the previously denied claim. As noted, upon review of the record, the Board finds that the Veteran had continuously pursued the claim on appeal. However, in rating decisions from 2014 to 2017, the RO adjudicated the claim on a finality basis. In order to ensure full due process compliance, to include providing the Veteran with adequate notice and reasons and bases for any determination reached, a remand is necessary to address the claim on the merits. As to the Veteran's claim, the evidence of record shows a diagnosis of obstructive sleep apnea. See April, September and December 2016 VA Opinions and VA and private treatment records. Upon April 2016 VA examination, the examiner opined that the Veteran's obstructive sleep apnea is less likely than not proximately due to or the result of the Veteran's service-connected PTSD. The September 2016 VA examiner opined that it is less likely than not that the Veteran's sleep apnea is secondary to his PTSD. The December 2016 VA examiner opined that the Veteran's obstructive sleep apnea is less likely than not proximately due to or the result of the Veteran's service-connected PTSD. The Board notes that the examiners only addressed causation and did not address whether the Veteran's service-connected PTSD aggravated his obstructive sleep apnea. A medical opinion addressing secondary service connection must address causation and aggravation. See El Amin v. Shinseki, 26 Vet. App. 136 (2013). In addition, the Board notes that the April 2016 VA examiner was instructed to address aggravation, including by medication prescribed to treat the Veteran's PTSD, but did not opine on either. As such, an addendum opinion is necessary. Further, in his August 2014 correspondence, the Veteran asserted that he experiences sleep apnea symptoms due to exposure to hazardous chemicals while carrying out his military occupational specialty (MOS) duties and due to his service in Vietnam. The Veteran's DD Form 214 shows that his MOS was equipment storage clerk and that he had active duty service in the Republic of Vietnam. However, a review of the evidence of record does not show that the proposed theory of entitlement was addressed, i.e., entitlement to service connection for obstructive sleep apnea, as secondary to exposure to Agent Orange and/or hazardous chemicals. Accordingly, a VA opinion and readjudication is necessary to ensure that all of the Veteran's theories of entitlement to service connection are addressed. This matter is REMANDED for the following action: 1. Obtain an addendum opinion regarding the following: (a) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's obstructive sleep apnea had its onset in, or is otherwise related to, active service, to include as to exposure to Agent Orange and/or hazardous chemicals. (b) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's obstructive sleep apnea was caused or aggravated by his service-connected PTSD, to include medication prescribed for the Veteran's PTSD. The term "aggravation" means any incremental increase in disability regardless of permanence. If aggravation is found, then, to the extent possible, the examiner should establish a baseline level of severity of the obstructive sleep apnea disability prior to aggravation by the service-connected PTSD. The examiner must address all theories and the Veteran's lay contentions, as well as provide a complete rationale for all opinions expressed and conclusions reached. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal addressing all of the Veteran's theories of entitlement to service connection. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. (Continued on the next page) If necessary, return the case to the Board for further appellate review. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Kuzniar, 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.