Citation Nr: 21040859 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 13-06 402A DATE: July 7, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA), as secondary to service-connected disabilities, is remanded. REFERRED The Board of Veterans' Appeals (Board) acknowledges that, in May 2019, the Veteran submitted a statement in which she disagreed with the combined rating of 30 percent for her service-connected major depressive disorder (MDD) with posttraumatic stress disorder (PTSD) and unspecified insomnia disorder associated with left knee chondromalacia. The Board does not have jurisdiction over the issue of the rating of the Veteran's insomnia, and therefore cannot adjudicate or review the rating assigned at this time. The Veteran originally appealed the denial of service connection for a sleep disorder, which was done under the Legacy system and before the implementation of the Appeals Modernization Act (AMA) review system. 84 Fed. Reg. 138 (Jan. 18, 2019); 38 C.F.R. § 3.2400(a) (AMA applies to initial decisions issued on or after February 19, 2019) and 38 C.F.R. § 3.2400(b) (defining Legacy appeals). Not only is the March 2019 rating decision with which the Veteran disagreed an AMA decision, the decision granted service connection for insomnia, which represents a full grant of the benefit sought previously under the Legacy system. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating). In order to appeal or review the rating assigned, the Veteran must file an appropriate Department of Veterans Affairs (VA) form within the requisite time frame. 38 C.F.R. § 3.2500(a) ("a claimant may elect [an] administrative review option[] by timely filing the appropriate form prescribed by the Secretary;" see April 2, 2019 Notification Letter to the Veteran explaining review options under AMA. The claims file does not contain any of the required VA forms for seeking review of the March 2019 AMA rating decision issuing a rating for insomnia, and the Veteran's April 2019 statement cannot be construed as a request for review, not only because it is not on a prescribed form, but also because it does not specify a desired review option. Therefore, the Board does not have jurisdiction over this issue, and it is referred to the Agency of Original Jurisdiction (AOJ) for further action. REASONS FOR REMAND The Veteran had active duty service from September 1996 to June 2005. This matter comes to the Board from rating decisions of a VA AOJ dated in April 2012. Specifically, the rating decision denied service connection a sleep disorder. The claim had been expanded to include two separate disabilities: insomnia and obstructive sleep apnea. As noted above, service connection for insomnia was granted in a March 2019 rating decision, and that issue is no longer before the Board. The United States Court of Appeals for Veterans Claims (Court) vacated a November 2019 Board decision in February 2021. The Board remanded this appeal to the AOJ for additional development most recently in September 2017. Unfortunately, another remand is required for the service connection claim, as explained below. 1. Entitlement to service connection for obstructive sleep apnea, as secondary to service-connected disabilities is remanded. The Veteran was afforded a VA examination for her sleep apnea claim in March 2019. The examiner explained that apnea was related to the upper airways, and was not affected by the Veteran's service-connected disabilities, including MDD and PTSD, lumbosacral strain, bilateral foot disabilities, and bilateral knee disabilities. After the opinion was provided, the Veteran was granted service connection for insomnia. Thereafter, in April 2019, the Veteran submitted a statement contending that her OSA was secondary to the now- service-connected insomnia disorder. There is no medical evidence of record addressing the relationship between the Veteran's insomnia and OSA. Therefore, another remand is warranted. The matters are REMANDED for the following action: 1. Obtain a supplemental opinion from an appropriate VA examiner to determine the etiology of the Veteran's obstructive sleep apnea. Following review of the record, the examiner should respond to the inquiry below. If the examiner determines that he or she cannot respond to the Board's inquiry as set forth in detail below without examination of the Veteran, the Veteran should be afforded such an in-person examination, or by other means if an in-person examination is not feasible. If an examination is conducted, any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner should address the following: (a.) The examiner must directly address the Veteran's contentions and reports that her sleep apnea is secondary to her service-connected insomnia disorder associated with pain, and that her service-connected musculoskeletal disabilities impact her sleeping position. (b.) The examiner must opine as to whether it is at least as likely as not (50 percent likelihood or greater) that the Veteran's obstructive sleep apnea is proximately due to, the result of, or aggravated beyond its natural progression by the Veteran's service-connected insomnia. A complete rationale must be provided for all expressed opinions. A complete explanation for all opinions expressed must be provided. A clearly stated rationale must not be based solely on lack of documentation or records. The reasons for any opinion must include a discussion of the relevant evidence. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Smith, 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.