Citation Nr: 22012702 Decision Date: 03/05/22 Archive Date: 03/05/22 DOCKET NO. 09-18 973 DATE: March 5, 2022 REMANDED Entitlement to service connection for a sleep disorder is remanded. REASONS FOR REMAND This matter was most recently before the Board of Veterans' Appeals (Board) in November 2021, when it was remanded to obtain a new secondary service connection opinion regarding the issue on appeal due to inadequacies in a previously obtained April 2021 opinion. The record reflects the Agency of Original Jurisdiction (AOJ) obtained a new secondary service connection opinion in November 2021, following the Board's remand; however, the AOJ subsequently requested an addendum to the November 2021 opinion because its author, A.N., M.D., failed to consider all the Veteran's service-connected disabilities in the context of the opinion. See December 11, 2021 Exam Rework Scheduling Request. Approximately two weeks later, A.N., M.D., responded to the addendum request with what is essentially a duplicate of his initial opinion, which considers only the effects of bilateral varicose veins and a residual scar of a right buttocks wound in the context of secondary service connection. It is not clear why the AOJ failed to return the addendum to A.N., M.D., for correction. The Board notes the Veteran is entitled to service connection for several additional disabilities, to include other specified schizophrenia spectrum and other psychosis disorder, thoracolumbar spine degenerative arthritis, cervical spine degenerative arthritis with surgical scars, bilateral radiculopathy of the upper extremities, bilateral radiculopathy of the lower extremities, acid reflux, and erectile dysfunction, in addition to the disabilities considered by A.N., M.D., in his opinions. Thus, a new secondary service connection opinion based on accurate factual history is necessary to ensure compliance with VA's duty to assist, as well as the Board's prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, although a remand is required to obtain an adequate secondary service connection opinion, the Board notes it will also provide the AOJ the opportunity to correct due process concerns related to its most recent supplemental statement of the case for this appeal, which was returned undeliverable after being sent to the Veteran's representative's old address. On remand, the AOJ must ensure all correspondence mailed to the Veteran's representative are sent to his current address, as reflected in VA's database of accredited attorneys, agents, and representatives, with an appropriate response time being provided thereafter. The matter is REMANDED for the following action: 1. Schedule the Veteran for a new examination to obtain an opinion regarding his service connection claim for a sleep disorder, preferably with an examiner who has not previously provided an opinion regarding the Veteran's claim. The selected examiner must provide an opinion addressing whether the Veteran has a sleep disorder, to include, but not limited to, sleep apnea, that is at least as likely as not (an approximate balance of positive and negative evidence) proximately due to, or aggravated by, a service-connected disability or disabilities. The examiner must be advised the Veteran's service-connected disabilities include other specified schizophrenia spectrum and other psychosis disorder, thoracolumbar spine degenerative arthritis, cervical spine degenerative arthritis with surgical scars, bilateral radiculopathy of the upper extremities, bilateral radiculopathy of the lower extremities, acid reflux, erectile dysfunction, bilateral varicose veins, and a residual scar of a right buttocks wound. The opinion must explicitly address both causation and aggravation to be deemed adequate. The examiner is advised aggravation means an increase in the severity of the underlying disability beyond its natural progression. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. In the context of the opinion, the examiner is asked to address the April 2021 VA examiner's assertion that obesity is a primary risk factor in the development of the Veteran's sleep apnea and answer the following three questions: 1) did any the Veteran's service-connected disabilities or a combination of service-connected disabilities cause the Veteran to become obese or aggravate the Veteran's obesity? 2) if a service-connected disability or disabilities caused the Veteran to become obese, or aggravated the Veteran's obesity, was the obesity as a result of the service-connected disability or disabilities a substantial factor in causing the sleep apnea? 3) and whether sleep apnea would not have occurred but for the obesity caused or aggravated by the Veteran's service-connected disability or disabilities? The examiner must explicitly acknowledge that the secondary service connection theory in the Veteran's case is not limited solely to consideration of obesity as an intermediate step to the development of sleep apnea; therefore, there must also be a discussion of whether there is a potential link between any of the Veteran's service-connected disabilities and sleep apnea, to include both consideration of causation and aggravation, as noted above. The examiner must also be advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. The examination report must include a complete rationale for the opinion provided. 2. If any benefit sought on appeal remains denied, issue a supplemental statement of the case, ensuring it is sent to the Veteran and his representative at his current address, as reflected in VA's database of accredited attorneys, agents, and representatives, with an appropriate response time being provided thereafter. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. S. Kyle, 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.