Citation Nr: 20038065 Decision Date: 06/03/20 Archive Date: 06/03/20 DOCKET NO. 15-10 350A DATE: June 3, 2020 REMANDED Entitlement to service connection sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran had active duty with the U.S. Navy from March 1969 to January 1973. This case comes before the Board of Veteran’s Appeals (Board) on appeal from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In December 2019 the Board remanded this matter, along with a claim of service connection for a disability manifested by dizziness, for further development. In March 2020, the RO granted service connection for dizziness, which is a full grant of the benefits sought on appeal; therefore, the issue of service connection for a disability manifested by dizziness is not before the Board. With regard to sleep apnea, further remand is required. A remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The December 2019 remand directed that a VA examination and opinion be obtained. While an examination was performed in March 2020, the resulting opinion is inadequate. The examiner opined that while PTSD is a risk factor for sleep apnea, citing to unspecified studies in UpToDate.com, obesity was a greater risk factor, and to attribute current sleep apnea to PTSD would “be speculation.” The rationale was that even though PTSD could reasonably cause sleep apnea, the presence of another factor over rode such. The rationale fails on two points. First, the examiner is required to explain why an opinion would be speculative. The examiner must indicate whether the record is somehow inadequate to allow an opinion, or if the question cannot in fact be resolved with adequate certainty. Jones v. Shinseki, 23 Vet. App. 382 (2010). Second, the presence of multiple risk factors does not moot the contribution of any one of them. It may make such less likely, but does not necessarily remove it as a contributing cause. The Board specifically requested an opinion as to whether PTSD could have aggravated sleep apnea; a role as a minor but contributing cause would appear to fall within that inquiry, and must be adequately addressed. The examiner did not discuss aggravation. Finally, the citation to UpToDate.com articles, generally, is not adequate. The specific studies relied on must be identified in order to allow proper evaluation of the examiner’s assertions. Previously known studies simply comment on comorbidity, and are inconclusive as to causation. The matters are REMANDED for the following action: 1. Return the claims file to the examiner who conducted the March 2020 VA Sleep Apnea examination and rendered the associated opinion. If the examiner is not available, an equally qualified professional may be consulted. In-person re-examination is at the discretion of the examiner. Following review of the claims file, the examiner must opine as to whether currently diagnosed sleep apnea is at least as likely as not caused or aggravated by service or service-connected PTSD. In doing so, the examiner must discuss any role of PTSD as a contributing factor in the development of sleep apnea or of its severity. Any medical literature relied on must be specifically identified, and if not generally and publicly available, must be reproduced and associated with the claims file. A full and complete rationale for any opinion expressed is required. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). 2. Then, readjudicate the claim on appeal. In any benefit sought remains denied, issue an appropriate supplemental statement of the case and return the matter to the Board if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board William H. Donnelly 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.