Citation Nr: 22017724 Decision Date: 03/26/22 Archive Date: 03/26/22 DOCKET NO. 15-24 248 DATE: March 26, 2022 REMANDED Service connection for obstructive sleep apnea (OSA) is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1978 to May 1998. The case is on appeal from a May 2015 rating decision. In November 2018, the Board granted an increased rating for left shoulder arthritis, denied an increased rating for left shoulder arthroplasty, denied an increased rating for right shoulder arthroplasty, and remanded the claim for service connection for OSA for additional development. The Board also remanded the claim for service connection for OSA in October 2020 and May 2021. Service connection for OSA. The Veteran is seeking service connection for OSA. The Veteran asserts his OSA had its onset during service. See May 2016 Notice of Disagreement. He specifically asserts that he experienced severe daytime sleepiness during service, 20 years prior to his diagnosis. See December 2014 private examination report. Alternatively, the Veteran's representative asserts the Veteran's OSA is secondary to his service-connected low back condition, due to treatment of the low back condition with hydrocodone and its effects on the Veteran's central nervous system. See August 2020 Brief. Initially, the Board notes the claim was remanded in October 2020 to obtain new VA opinions concerning direct and secondary service connection as the Board determined opinions obtained in September 2019 and June 2020 were not adequate to decide the claim. The Board found the opinions relied on an absence of documented sleep complaints during service and did not consider notations to respiratory conditions that occurred during service. As a result, additional opinions were obtained in January 2021. In a May 2021 decision, the Board explained that did not proceed to adjudicate the appeal at that time because the Veteran's representative challenged the January 2021 VA examiner's competency to evaluate OSA. The Board noted that "once the veteran raises a challenge to the competency of the medical examiner, the presumption [of competency] has no further effect, and, just as in typical litigation, the side presenting the expert... must satisfy its burden of persuasion as to the examiner's qualifications." See Francway v. Wilkie, 940 F.3d 1377, 1381 (2019). "The Board must then make factual findings regarding the qualifications and provide reasons and bases for concluding whether or not the medical examiner was competent to provide the opinion." Id. Thus, the Board remanded the claim to obtain the January 2021 VA examiner's curriculum vitae and VA examiner credentials. The Board notes that although the May 2021 decision did not address the adequacy of the January 2021 VA opinion, the Board finds, upon further consideration, it is not entirely adequate to decide the claim. In this regard, the examiner provided a negative opinion concerning secondary service connection stating that the Veteran's service-connected conditions, which include a bilateral shoulder condition, back condition, right lower extremity radiculopathy, and tinnitus, do not cause or aggravate OSA, as they have no physiologic or anatomic connection to OSA. The Board finds this opinion is not entirely adequate to decide the claim, as the examiner did not address the Veteran's representative's contention regarding whether the Veteran's obstructive OSA is secondary to his low back condition due to treatment with hydrocodone, and its effects on the Veteran's central nervous system. Accordingly, an additional opinion is warranted on remand. The Board additionally notes that concerning the Veteran's representative's challenge of the January 2021 examiner's opinion's competency, as the Board has found the opinion not adequate, the challenge is moot. See Francway, 930 F.3d at 1380. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records since December 2021. 2. Thereafter, schedule the Veteran for a VA examination (or telehealth interview, record review, etc., if an in-person examination is not feasible) by a qualified medical professional that is different from the examiner who provided the January 2021 opinion, for an opinion to determine the nature and etiology of the Veteran's OSA. The need for an examination is left to the discretion of the examiner. The entire claims file should be reviewed by the examiner. After reviewing the claims file, the examiner is to state whether: It is at least as likely as not (a degree of probability of 50 percent or higher) that the Veteran's OSA had its onset during service or is otherwise related to an in-service injury, event, or disease. The examiner should consider the Veteran's statements regarding the onset of severe sleepiness 20 years prior to his diagnosis in 2013. It is at least as likely as not that the Veteran's OSA is caused or aggravated by his service-connected back condition. The examiner should specifically consider and address the extent to which the Veteran's use of hydrocodone, and its effects on his central nervous system cause and/or aggravate the Veteran's OSA. "Aggravation" is an increase in disability beyond the natural progress of the disease. The examiner should provide rationale for all opinions expressed, including by citing to the record. Joshua Castillo Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Gray, 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.