Citation Nr: 22018754 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 15-19 732 DATE: March 30, 2022 REMANDED Entitlement to service connection for sleep apnea disability is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1975 to March 1977, with additional Reserve service. The Board most recently remanded the claim in November 2021 for further development. There has not been substantial compliance with the remand directives and the claim must be remanded again. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for sleep apnea disability is remanded. The Veteran seeks entitlement to service connection for sleep apnea that is either due to service or due to his service-connected disabilities (to include acquired psychiatric disorder, hearing loss, tinnitus, and rhinitis). The Veteran was afforded a VA examination in November 2021. The examiner opined that the Veteran's sleep apnea is less likely than not related to his military service because the diagnosis of sleep apnea did not develop until "decades later." However, the examiner's negative nexus opinion is inadequate for the Board to adjudicate the claim because it is based exclusively on the absence of service treatment records documenting sleep apnea or any other sleep-related condition. An opinion based on the absence of treatment records without consideration of the Veteran's competent reports is inadequate. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The examiner also opined that the Veteran's sleep apnea was less likely than not caused or aggravated by the service-connected disabilities because hearing loss, tinnitus, rhinitis, and anxiety are not medically related to obstruction of sleep apnea. However, despite specific instructions as to the correct legal definition of aggravation for this matter being any increase in disability, the opinion provider used the incorrect definition of beyond the natural progression of the disease. A medical opinion that applies the incorrect legal standard is inadequate and nonprobative. El-Amin v. Shinseki, 26 Vet. App. 136, 14041 (2013). The matter must once again be returned to the agency of original jurisdiction to obtain addendum medical opinions that defines aggravation as any increase in disability and is otherwise adequate for adjudication of the claim. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion by a different, appropriate clinician to determine the nature and etiology of the Veteran's sleep apnea. The examiner must review the entire claims file, to include this remand. Another VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) should be scheduled only if determined necessary by the examiner. If the examiner determines that another VA examination is necessary, any evaluations, studies, or tests deemed necessary by the examiner should be accomplished and any such results must be included in the examination report. The examiner must provide the following: a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea was incurred in or is otherwise related to active service? b.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea was caused OR aggravated by any service-connected disease or injury, to include rhinitis or psychiatric condition? The examiner is advised that aggravation is defined as any increase in severity of a disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease or injury. The examiner is advised that the Veteran is competent to report symptoms and treatment and that his reports, including his reports as to the onset and nature of his symptoms, must be considered, along with the other evidence of record, in formulating the requested opinions. A complete rationale for any opinions expressed should be set forth. If the examiner cannot provide an above opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). 2. Confirm that the VA medical opinion provided comports with this remand, specifically that the standard for the secondary aggravation opinion is any increase in disability, not the standard of beyond the natural progression as noted on the examination form itself. If not, get an addendum. B. G. LeMoine Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. E. Bresler 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.