Citation Nr: 20002263 Decision Date: 01/10/20 Archive Date: 01/09/20 DOCKET NO. 12-31 277 DATE: January 10, 2020 REMANDED Entitlement to service connection for a sleep apnea disability, to include as secondary to post-traumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1968 to June 1970, with service in Korea and was awarded the Combat Infantry Badge. Additionally, the Veteran served in the Army Reserve with periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2010, rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran attended a travel Board hearing before the undersigned Veterans Law Judge in February 2016. A transcript of the hearing is of record. This matter was previously remanded by the Board for further development in May 2016 and June 2018. Entitlement to service connection for a sleep apnea disability, to include as secondary to PTSD is remanded. The Veteran contends that he is entitled to service connection for a sleep apnea disability, including as secondary to his service-connected PTSD. Specifically, the Veteran argues that his PTSD has resulted in chronic sleep impairment and obesity, which has either caused or aggravated his sleep apnea. In a June 2019 medical opinion, the examiner opined that the Veteran's current obstructive sleep apnea is less likely than not related to his reported sleep issues during service. The examiner noted that obstructive sleep apnea is caused by a blockage of the upper airway that restricts air passage during sleep, and that this pathology is not caused or aggravated by insomnia, sleep walking, or other sleep disorders. The examiner further noted that the Veteran’s sleep apnea was diagnosed 37 years after his discharge from active service. Additionally, the examiner indicated that the presence of primary snoring is not an indication of sleep apnea, and that snoring, accompanied by observed periods of apnea, is more indicative of obstructive sleep apnea. Furthermore, the examiner opined that the Veteran's obstructive sleep apnea is less likely than not related to his service-connected PTSD. The examiner noted that PTSD is a psychological condition that has no bearing on the anatomical and pathological causes of obstructive sleep apnea. The examiner indicated that chronic sleep impairment does not result in obesity, but rather lifestyle factors result in obesity. The June 2019 examiner’s opinion is not in compliance with the June 2018 remand by the Board. The June 2018 Board remand instructed the examiner to specifically address the Veteran’s argument that his current sleep apnea disability is linked to his service-connected PTSD because his PTSD manifests by chronic sleep impairment, and that chronic sleep impairment is linked to obesity, and that obesity is linked to sleep apnea. The opinion, however, merely states that chronic sleep impairment does not result in obesity, but rather lifestyle factors result in obesity. This opinion is inadequate because, first, it is a mere conclusion with no underlying reason provided for it. This does not give the Board sufficient information to judge the probative value of the opinion. Second, it does not actually address the argument that the Veteran’s PTSD has affected his lifestyle in such a way as to cause him to be obese. Nor does it address the medical journal evidence from the Centers for Disease Control or the Open Cardiovascular Medicine Journal article, which both conclude that sleep impairment can in fact cause obesity. Third, the examiner did not address whether the Veteran’s sleep apnea was aggravated by his service-connected PTSD. See El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (holding that findings of “not due to,” “not caused by,” and “not related to” a service-connected disability are insufficient to address the question of aggravation under § 3.310(b)). Since the Board’s remand instructions have not been complied with, this issue must be remanded again. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). The matters are REMANDED for the following action: Obtain an addendum medical opinion from a qualified VA medical professional as to the Veteran’s sleep apnea. The record must be made available to and reviewed by the VA examiner. Following a review of the entire record, the examiner should address the following: a.) Is it at least as likely as not that the Veteran’s current sleep apnea condition is related to his active military service, to include his noted problems with sleeping, insomnia, and sleep walking found in his service treatment records. See VBMS, document labeled STR-Medical, receipt date 09/07/2014. In forming the opinion, the VA examiner is asked to acknowledge the Veteran’s lay statements regarding the onset and continuation of is symptoms to include snoring and sleep deprivation, during active Reserve service. See VBMS, document labeled Hearing Testimony, receipt date 02/25/2016, pages 3-4. b.) Notwithstanding the above, is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s obstructive sleep apnea was caused by his service-connected disabilities, to include his PTSD? c.) Notwithstanding the above, is it at least as likely as not (50 percent or greater probability) that the Veteran’s obstructive sleep apnea is aggravated by his service-connected disabilities, to include his PTSD? Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected conditions. In forming the opinion, the examiner must specifically address the Veteran’s argument that PTSD manifests by chronic sleep impairment, and that chronic sleep impairment is linked to obesity, and that obesity is linked to sleep apnea, as described in the May 2018 IHP, including addressing the medical literature cited from the Centers for Disease Control and the Open Cardiovascular Medicine Journal article, which both note a link between chronic sleep impairment and obesity. See VBMS, document labeled Appellate Brief (VSO IHP; Post remand Brief; Attorney Brief), receipt date 05/16/2018, pages 5-6. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner should note that the lack of a diagnosed sleep apnea disability in service cannot serve as the sole basis for a negative finding. Lay contentions must be considered and weighed in making the determination as to whether a nexus exists. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David M. Sebstead, 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.