Citation Nr: 22017246 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 16-03 933 DATE: March 24, 2022 ORDER Entitlement to service connection for sleep apnea syndrome, including as secondary to post traumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1987 to November 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs. The issue on appeal was previously denied by the Board in September 2020. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court) which, in a May 2021 Joint Motion for Remand (JMR), vacated the Board's September 2020 decision that denied entitlement to service connection for obstructive sleep apnea (OSA), including as secondary to a service-connected PTSD, and remanded the claim for action consistent with its decision. This case was remanded by the Board in October 2021. While additional delay is unfortunate, the Board finds further development is required before the Veteran's claim is decided. Relevant to this case is whether the Veteran's current diagnosis of obstructive sleep apnea can be attributed to symptoms the Veteran experienced in service, or can be attributed to his service connected PTSD. The Veteran's service treatment records (STR) do not show complaints, treatment, or diagnosis of any sleep related condition. However, the Veteran stated that fellow soldiers and his wife informed him that he had problems sleeping in 1991. See February 2020 VA examination. The Veteran submitted a statement from a fellow soldier detailing many of the sleeping problems observed during active duty service. See May 2016 Lay Statement. The Veteran's representative argues that service connection should be granted under 38 C.F.R. § 3.303(b) based on chronicity and continuity. See February 2022 Appellate Brief. The referenced regulation states that with chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). The Board finds that service connection cannot be granted based on this theory. For the showing of a chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." Id. Here, there is no evidence sufficient to identify the disease entity. In other words, because there was no apnea/hypoxia index, or other objective means to diagnose sleep apnea, the Board cannot conclude that the Veteran's observed sleeping problems in service were indeed sleep apnea and not something else. An October 2021 Board decision sought to address whether service connection is warranted secondary to service-connected PTSD. A VA exam was conducted in February 2020 in which the examiner opined the claimed condition was less likely than not (less than 50 percent probability) aggravated beyond its natural progression by the Veteran's service-connected PTSD. The May 2021 JMR determined that this medical opinion is inadequate because the examiner did not explain why there was no aggravation based on the Veteran's particular medical condition and circumstances. Pursuant to the October 2021 Board remand, an addendum opinion was obtained in which the examiner stated the claimed condition was less likely than not aggravated beyond its natural progression by service-connected PTSD. The rationale is that PTSD predates sleep apnea and there are no further sleep study results, other than in 2012, that show a worsening AHI that would indicate aggravation of sleep apnea. See December 2021 VA Addendum opinion. The Board finds this opinion deficient for two reasons. One, the examiner does not explain why the timing of the PTSD diagnosis precludes it from aggravating sleep apnea. Two, the May 2021 JMR specifically asks for a discussion based on the Veteran's particular medical condition and circumstances. The lack of a clear rationale does not allow the Board to make a fully-informed decision. Accordingly, the Board finds that the directives of its October 2021 remand have not yet been accomplished. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). On remand, the examiner is specifically requested to provide an adequate opinion with reasoned bases and rationales for every conclusion stated. An opinion on the etiology of the Veteran's sleep apnea condition must include a discussion of all the pertinent evidence of record, not only the lack thereof. The matter is REMANDED for the following action: 1) Obtain an addendum opinion by a suitably qualified health care professional to determine the nature and etiology of the Veteran's sleep apnea. An examination of the Veteran should be scheduled if the examiner determines one is necessary to obtain the requested opinion. For example, if a more recent AHI is required to determine aggravation. The claims file, to include a copy of this remand must be made available to the examiner for review, and the examination report should reflect that such a review was accomplished. a) Following a full review of the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's sleep apnea is aggravated by his service-connected PTSD. For any aggravation found, the examiner should state, to the best of his or her ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. The examiner must specifically review and discuss the evidence of record and provide an opinion as to whether this Veteran's PTSD has caused any increase in severity of the Veteran's sleep apnea supported by reasons and bases for the opinion. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. A complete rationale must be provided for all opinions offered. If any opinion cannot be offered without resorting to mere speculation, the examiner must fully explain why this is the case and identify what, if any, additional evidence would potentially allow for a more definitive opinion. The Appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Nelson, 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.