Citation Nr: 25002000 Decision Date: 02/11/25 Archive Date: 02/11/25 DOCKET NO. 17-59 661 DATE: February 11, 2025 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA), claimed as secondary to service-connected posttraumatic stress disorder (PTSD) and fibromyalgia, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1984 to June 1985 and from November 1985 to September 1993, including service in Southwest Asia. He died in September 2021. The appellant is his surviving spouse, and she has been substituted as the claimant for purposes of processing these claims, pending at the time of the Veteran's death, to their completion. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from December 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), which, inter alia, denied service connection for OSA. The Veteran filed a notice of disagreement (NOD) in September 2016 and a statement of the case (SOC) was issued in June 2018. He perfected a timely appeal in July 2018 via the submission of a VA Form 9 on which the Veteran's attorney, Jan Dils, requested a Board videoconference hearing, although she unfortunately failed to identify any errors of fact or law in the determination being appealed. In April 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. At the hearing, the Veteran's attorney, for the first time, raised a contention that the Veteran's sleep apnea was due to obesity caused by medications prescribed for his service-connected psychiatric disability and/or fibromyalgia. The record reflects that Ms. Dils had been representing the Veteran since September 2016. In July 2021, the Board remanded the matter to obtain a medical opinion regarding the newly raised theory of entitlement. After considering the opinions obtained, in a November 2022 decision, the Board, inter alia, denied service connection for OSA. The Veteran appealed the decision to the United States Court of Appeals for Veterans' Claims (Court). In a December 2023 memorandum decision, the Court vacated and remanded the portion of the Board's November 2022 decision which (1) denied service connection for OSA claimed as due to service-connected PTSD and fibromyalgia, (2) an initial rating in excess of 30 percent for PTSD prior to October 2, 2017, and in excess of 50 percent for the period from October 2, 2017 to June 27, 2021. The Court dismissed the appeal with respect to the Board's denial of disability compensation for bilateral hearing loss, a rating in excess of 70 percent for PTSD from June 28, 2021, and service connection for OSA "as directly related to service and as related to service through obesity as an intermediate step." Memorandum decision at page 1. The Board notes that the appellant was represented at the Court by Chisholm, Chisholm, and Kilpatrick. Following the December 2023 memorandum decision, the firm filed an application for attorneys' fees and expenses in the amount of $19,118.83. VA's General Counsel did not contest the reasonableness of the claimed fees beyond an agreed to amount of $17,915.93, for the sole purpose of avoiding further litigation and the costs related thereto. In April 2024, the Court granted the application for the agreed amount of $17,915.93. Chisholm, Chisholm, and Kilpatrick then elected not to continue representing the appellant before VA. Thus, she remains represented by the attorney listed above. In an August 2024 decision, the Board, inter alia, remanded the issue of entitlement to service connection for OSA claimed as due to service-connected PTSD and fibromyalgia for additional evidentiary development pursuant to the directives of the December 2023 memorandum decision. A supplemental statement of the case (SSOC) was issued in December 2024. The Veteran's VA claims file has been returned to the Board for further appellate proceedings. 1. Entitlement to service connection for OSA, claimed as secondary to service-connected PTSD and fibromyalgia. In its December 2023 memorandum decision, the Court determined that the April 2022 VA medical opinion was inadequate. In that opinion, the examiner concluded that the Veteran's service-connected PTSD and fibromyalgia did not aggravate the physiologic or anatomic mechanisms of sleep apnea but, according to the Court, did not address "whether the veteran's PTSD or fibromyalgia 'aggravated any functional impairment associated with [his sleep apnea]." In that regard, the Court noted that the Veteran had "reported that his sleep apnea caused functional impairment in that he had difficulty staying awake while driving." Memorandum decision at page 15. In order to comply with the memorandum decision, the August 2024 Board decision determined that remand was warranted to obtain a VA medical opinion addressing whether the Veteran's service-connected PTSD or fibromyalgia caused any functional increase in the severity of his OSA. In the August 2024 remand, the Board therefore instructed the AOJ to obtain a VA medical opinion to address the question of whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's OSA was aggravated by his service-connected PTSD or fibromyalgia. Pursuant to the Board remand, a VA medical opinion was obtained in September 2024 in which the examiner concluded that the Veteran's obstructive sleep apnea was less likely than not aggravated by the Veteran's PTSD or fibromyalgia. In rendering the opinion, however, the September 2024 VA examiner did not address whether the Veteran's PTSD or fibromyalgia aggravated the Veteran's reported functional impairment associated with his OSA, i.e. his difficulty staying awake while driving. While the Board regrets further delay, given the basis for the December 2023 memorandum decision, the evidence is insufficient to adjudicate the Veteran's claim of entitlement to service connection for OSA, claimed as secondary to service-connected PTSD and fibromyalgia. VA's duty to assist includes ensuring that an examination report or opinion obtained is adequate. 38?C.F.R. § 3.159(c);? Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that where VA provides the veteran with an examination in a service connection claim, the examination must be adequate). The Board finds that remand is required to obtain a new VA opinion to address outstanding the question of aggravation. The matter is REMANDED for the following action: Refer the VA claims file to a medical professional to provide an opinion as to the claimed OSA disability. After reviewing the record, the clinician should address the following: Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's OSA was aggravated by his service-connected PTSD or fibromyalgia? In rendering this opinion, the examiner must consider whether the Veteran's service-connected PTSD and/or fibromyalgia aggravated any functional impairment associated with his sleep apnea, particularly his reported difficulty staying awake while driving. If aggravation is found, the clinician should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. K. Buckley, 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.