Citation Nr: 21041229 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 17-03 100 DATE: July 8, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1987 to March 1988 and November 1990 to June 1991, including in Southwest Asia. His awards include the Southwest Asia Service Medal with three Bronze Stars. The Veteran filed for service connection for sleep apnea on November 14, 2011. In June 2013 a Department of Veterans' Affairs (VA) regional office (RO) denied the claim in a "provisional decision." Appellate rights were not provided. In September 2013 the Veteran disagreed with the denial, submitted new and material evidence, and filed another claim for sleep apnea. The RO denied the claim again in a September 2014 rating decision and this time provided appellate rights. The Veteran timely appealed. The June 2013 denial did not become final because appellate rights were not provided and the veteran submitted new and material evidence within one year. Therefore, the appeal stems from the original June 2013 claim. No new and material evidence is required to adjudicate the claim. The Board previously remanded the instant matter for additional development in January 2019. The Veteran has a current diagnosis of obstructive sleep apnea which he attributes to his time in active service, to include his service in the Persian Gulf. The Veteran is also service connected at 50 percent disabling for Post-Traumatic Stress Disorder (PTSD), effective from November 30, 2011. In February 2013 the Veteran was afforded a VA Examination. There, the examiner opined the Veteran's sleep apnea was not related to environmental exposures but did not provide an adequate rationale. As such the matter was remanded. Per the remand, in January 2020, the Veteran was afforded another VA Examination. Here, the examiner also opined the Veteran's sleep apnea is not caused by environmental exposure, further explaining the Veteran did not show any symptoms during his active duty or within a year or two after his service consistent with obstructive sleep apnea. However, the examiner did state: "He does have PTSD and there are known associations between PTSD and obstructive sleep apnea. However, this is not the question today..." The examiner did not provide an opinion on secondary service connection, as this was outside the scope of the remand directive. An examination on the basis of the theory of secondary service connection is required where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) the Veteran has a service-connected disability; (3) an indication that the disability or symptoms of disability may be associated with the service-connected disability; but (4) insufficient competent medical evidence on which to decide the claim. McLendon v. Nicholson, 20 Vet. App. 79, 85-86 (2006). As the Veteran has a current disability of obstructive sleep apnea, is currently service-connected for PTSD, and the January 2020 VA examiner indicated they may be related, the duty to assist is triggered and the Veteran must be afforded a VA examination to determine whether there is a nexus between the Veteran's current obstructive sleep apnea and his service-connected PTSD. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the January 2020 examiner if possible (if unavailable, send to an appropriate clinician) regarding whether the Veteran's sleep apnea is at least as likely as not (1) caused by his PTSD, or (2) aggravated beyond its natural progression by his PTSD. Provide rationales for all opinions. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Brewer, 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.