Citation Nr: 21032816 Decision Date: 05/28/21 Archive Date: 05/28/21 DOCKET NO. 18-53 646 DATE: May 28, 2021 ORDER New and material evidence having been received, the appeal to reopen the claim for entitlement to service connection for sleep apnea is granted. REMANDED The issue of entitlement to service connection for sleep apnea, to include as secondary to a service-connected disability, is remanded. FINDINGS OF FACT 1. An August 2016 rating decision denied entitlement to service connection for sleep apnea; the Veteran did not timely appeal the denial; and new and material evidence was not submitted as to the issue within the one-year appeal period following the issuance of the August 2016 rating decision. 2. Evidence received since the August 2016 rating decision is new and raises a reasonable possibility of substantiating the Veteran's claim for entitlement to service connection for sleep apnea CONCLUSIONS OF LAW 1. The August 2016 rating decision which denied entitlement to service connection for sleep apnea is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156 (b), 20.200, 20.202, 20.302, 20.1103. 2. New and material evidence having been received; the claim for entitlement to service connection for sleep apnea is reopened. 38 U.S.C. §§ 1110, 5108; 38 C.F.R. §§ 3.156 (a), 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2000 to July 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded by the Board in February 2021. As an initial matter, the Board finds that new and material evidence has been received to reopen the claim of entitlement to service connection for sleep apnea. Entitlement to service connection for sleep apnea was denied in an August 2016 rating decision based upon the finding that the Veteran did not have a current diagnosis of sleep apnea. Since the August 2016 rating decision, new and material evidence has been received, including a November 2017 sleep study which reflects a current diagnosis of sleep apnea. The Board finds that new and material evidence has been received which is sufficient to reopen the claim for entitlement to service connection for sleep apnea. See Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). REASONS FOR REMAND 1. The issue of entitlement to service connection for sleep apnea is remanded. The Veteran contends that he has sleep apnea that is directly related to his active service or secondary to his service-connected posttraumatic stress disorder (PTSD). The Veteran was provided a VA opinion in June 2020 to address whether the Veteran's current sleep apnea is secondary to his service-connected PTSD. The VA examiner opined that the Veteran's sleep apnea is less likely than not proximately due to or the result of his service-connected PTSD. As rationale, the VA examiner explained that sleep apnea happens when breathing is either stopped or reduced during sleep because of a narrowing or blockage of the upper airway. The VA examiner further explained that medical research does not support that PTSD causes sleep apnea because PTSD does not cause a physical obstruction in the airway. However, the June 2020 VA examiner did not provide an opinion as to whether the Veteran's sleep apnea is aggravated by his service-connected PTSD. In that regard, the Board notes that an opinion to the effect that one disability is not at least as likely as not "caused by or a result of" another disability does not answer the question of whether it is at least as likely as not that one disability is aggravated by another. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). The matter is are REMANDED for the following action: 1. Forward the record and a copy of this remand to the examiner who conducted the June 2020 VA examination, or if the examiner is unavailable, another suitably qualified examiner, for completion of an addendum opinion. If the examiner determines that another in-person examination of the Veteran is required to provide the below-requested information, then such an examination should be scheduled. Following review of the record, the examiner should express an opinion as to: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea is proximately due to or the result of his service-connected disabilities, specifically to include his service-connected PTSD. Rationale must be provided for the opinion proffered. In rendering the requested rationale, the examiner must note that it is not required that the sleep apnea is shown to be "predominantly" due to or result of PTSD, but rather, whether there is any contributing degree of etiological relationship to PTSD. (b.) If not, whether it is at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea is aggravated beyond natural progression by his service-connected disabilities, specifically to include his service-connected PTSD. Rationale must be provided for the opinion proffered. In rendering the requested rationale, the examiner must note that it is not required that the sleep apnea is shown to be aggravated beyond natural progression "predominantly" by PTSD, but rather, whether there is any contributing degree of aggravation beyond natural progression by the service-connected PTSD. (Continued on the next page) 2. After completion of the above, review the expanded record, including the evidence entered since the most recent statement of the case, and determine whether service connection for sleep apnea may be granted. If the benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. The appropriate period should be allowed for response before the appeal is returned to the Board. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. G. LeMoine, 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.