Citation Nr: 1800904 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 13-11 998 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for obstructive sleep apnea, to include as due to an undiagnosed illness or other qualifying chronic disability pursuant to 38 C.F.R. § 3.317 or as secondary to service-connected anxiety disorder with major depressive disorder. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Attorney INTRODUCTION The Veteran served on active duty from November 1984 to June 1994, January 2000 to May 2000, January 2003 to August 2003 and from September 2003 to September 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Veteran's claims file is currently under the jurisdiction of the Phoenix, Arizona RO. This case was previously remanded by the Board in January 2016. The case has been returned to the Board for review. In July 2014, the Veteran testified at Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. In addition to the matters noted above, the Veteran has appealed his claim for entitlement to service connection for bilateral carpal tunnel syndrome. The electronic record indicates that the AOJ is taking action on this issue. Because of this, it has not been certified for appellate review and the Board will not undertake review of the matter at this time. If the matter is not resolved in the Veteran's favor, the RO will certify the matter to the Board, which will undertake appellate review of the RO's action. Manlincon v. West, 12 Vet. App. 238 (1999) (holding that the Board's jurisdiction is triggered by the timely filing of a notice of disagreement (NOD)); 38 C.F.R. § 19.35 (2017) (stating that certification is for administrative purposes only and does not confer or deprive the Board of jurisdiction over an issue). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In its January 2016 remand, the Board directed the AOJ to schedule the Veteran for a VA examination to determine the etiology of his diagnosed sleep apnea. Specifically, the Board asked that the VA examiner provide an opinion as to whether the Veteran's current sleep apnea was caused or aggravated by his service-connected anxiety disorder with major depressive disorder. On remand, the Veteran was provided the requested VA addendum opinion in July 2016. The VA examiner opined that the Veteran's sleep apnea is not caused by his service-connected anxiety disorder with major depressive disorder. As rationale, the VA examiner stated that sleep apnea can cause mental and psychological effects, not the other way around. The VA examiner further opined that the Veteran's sleep apnea is not aggravated by his service-connected psychiatric disabilities. However, the examiner did not provide a rationale for the opinion provided as directed by the January 2016 Board remand. In that regard, the Board notes that an opinion to the effect that one disability "is not caused by or a result of" another disability does not answer the question of aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). Such an opinion would not survive judicial review. Accordingly, the July 2016 VA examiner's opinion is inadequate for decision-making purposes. See Barr v. Nicholson, 21 Vet. App. 302, 312 (2007). Moreover, it does not substantially complete the January 2016 Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Board remand). Therefore, the case must be remanded so that the Veteran may be provided a VA addendum opinion or, if necessary, another VA examination. Accordingly, the case is REMANDED for the following action: 1. Forward the record and a copy of this remand to the examiner who provided the July 2016 addendum opinion for completion of an addendum opinion. If the examiner determines that another in-person examination of the Veteran is required to provide the below-requested information, then such an examination should be scheduled. Following review of the record, the examiner should express an opinion as to: a) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current sleep apnea is proximately due to or the result of his service-connected disabilities, specifically to include his service-connected anxiety disorder with major depressive disorder. b) If not, whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current sleep apnea was aggravated by the Veteran's service-connected disabilities, specifically to include his service-connected anxiety disorder with major depressive disorder. If aggravation is shown, the examiner should quantify the degree of aggravation, if possible. Aggravation is defined as a permanent worsening beyond the natural progression of the disease. The examiner must note that an opinion to the effect that one disability "is not caused by or a result of" another disability does not answer the question of aggravation and will necessitate a further opinion. See El-Amin v. Shniseki, 26 Vet. App. 136, 140-41 (2013). 2. After completion of the above, review the expanded record, including the evidence entered since the most recent supplemental statement of the case, and determine whether service connection may be granted. If the benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. A reasonable period should be allowed fore response before the appeal is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).