Citation Nr: 22014304 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 16-61 406 DATE: March 12, 2022 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected tinnitus, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from November 1973 to November 1975. This matter comes before the Board of Veterans' Appeals (Board) from a May 2016 rating decision by the Agency of Original Jurisdiction (AOJ) that denied service connection for sleep apnea. In December 2021, the Board remanded the claim to the AOJ for a new medical opinion. Entitlement to service connection for sleep apnea. The Veteran contends that his sleep apnea (hereinafter, OSA) is related to service. Specifically, he contends that his OSA began during his active service when he experienced difficulty falling asleep. Treatment records show that the Veteran has a current diagnosis of OSA. See June 2015 Sleep Consultation. The Veteran underwent a VA examination in January 2022. Regarding secondary service-connection, the examiner opined that the Veteran's OSA is less likely than not due to nor has it been aggravated beyond its natural course by his tinnitus. The examiner stated that it is well-established that there is no anatomic or physiologic mechanism by which tinnitus can impact OSA, either as to cause or aggravation. Furthermore, the examiner opined, there is no evidence of aggravation of the Veteran's OSA beyond its natural course due any cause. The examiner explained that adjustments in CPAP or changes in modality of treatment are common throughout the course of OSA and do not necessarily constitute aggravation. Based on the above, the examiner concluded that there is no objective evidence of aggravation beyond the natural course of the Veteran's OSA. The Board regrets the further delay but finds that further remand is necessary in this appeal to afford the Veteran full consideration of his claim. Here, the examiner offers a conclusion regarding secondary service connection without providing a rationale in support of such opinion. To merely state that it is "well-established" without explaining, in detail, the relationship or lack thereof is insufficient rationale upon which the Board may rely in adjudicating the claim. Additionally, the examiner acknowledged changes in the modality of treatment and stated that they do not necessarily constitute aggravation. Yet, the examiner concludes that there is no evidence of aggravation without addressing the probability that such changes in modality of treatment were aggravated by the Veteran's tinnitus. Here, the examiner does not properly address the legal question as to likelihood of aggravation based on the facts specific to the Veteran's medical history and lay statements. As such, a new medical opinion is needed to provide a clear analysis based on the proper legal standard regarding aggravation and to provide a detailed rationale supporting any conclusion reached for both causation and aggravation. The matter is REMANDED for the following action: 1. Obtain an opinion from a qualified clinician to determine the nature and etiology of the Veteran's claimed OSA. The evidentiary record, including a copy of this remand, must be made available to and be reviewed by the clinician. It is up to the discretion of the reviewing clinician as to whether an examination is necessary to provide an adequate opinion(s). After the record review and examination of the Veteran, if deemed necessary, the reviewing clinician is asked to respond to the following inquiries: Is it at least as likely as not that the Veteran's OSA is caused by or proximately due to service-connected tinnitus? Is it at least as likely as not that the Veteran's OSA is aggravated beyond its natural progression by service-connected tinnitus? In rendering the opinions above, the examiner must provide a clear analysis based on the legal standard above regarding aggravation and provide a detailed rationale supporting any conclusion reached for both causation and aggravation. Additionally, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran's reports, he or she must provide an explanation for such rejection. The reviewing clinician is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale for the opinion should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 2. After the above has been completed, readjudicate the claim. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Wilson, 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.