Citation Nr: 21001811 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 13-26 190 DATE: January 11, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA), including as secondary to service-connected disorders, is remanded. Introduction The Veteran served honorably on active duty in the United States Air Force during the Gulf War Era, from December 1994 to May 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a August 2015 Rating Decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. When this matter came before the Board most recently in November 2018, it was remanded for additional development, specifically, for a supplemental VA medical opinion. The Board observes that the additional development has been conducted and, following issuance of June 2020 and July 2020 Supplemental Statements of the Case (SSOC) continuing the previous denials of the Veteran’s claim, the matter returns to the Board for further appellate review. Finally, the Board also remanded the Veteran’s claim for service connection for bruxism and, thereafter, the RO granted the claim by Rating Decision dated June 2020. Thus, the issue is no longer before the Board. While the Board regrets further delay in this matter, remand is again necessary to ensure substantial compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). REASONS FOR REMAND Entitlement to service connection for OSA, including as secondary to service-connected disorders, is remanded. The Veteran contends that her OSA is secondary to and/or aggravated by her service-connected disabilities. For the following reasons, the Board finds the August 2019 VA examiner’s addendum medical opinion inadequate. In May 2015, the Veteran submitted several medical journal articles addressing an etiological relationship between OSA and psychiatric disorders in Veterans. The Board’s November 2018 remand order directed the VA examiner to, inter alia, “specifically address the clinical literature provided by the [Veteran] in support of her claim.” However, the VA examiner’s October 2019 reports fail to address the medical journal articles submitted by the Veteran. As such, the VA examiner’s opinion is not in substantial compliance with the Board’s prior remand directives and is inadequate for purposes of determining entitlement to service connection. See Stegall, 11 Vet. App. at 271; Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, in July 2020 the Veteran submitted another medical journal article addressing an etiological relationship between OSA and psychiatric disorders in Veterans. This medical journal article, while referenced in the July 2020 SSOC, has also not been reviewed, considered, and commented upon by a VA examiner. Further, according to the July 2020 SSOC, the Veteran’s OSA “existed prior to service” and was not “permanently worsened.” In light of the VA examiner’s failure to comply with the Board’s prior remand directives regarding medical journal articles supplied by the Veteran, as well as, the unsubstantiated statement that the Veteran’s OSA pre-existed military service, remand is necessary in this matter. Finally, the Veteran’s fiancé, Mr. J.H., provided a written statement in July 2016 wherein he described that, in March 2006, the Veteran “would stop breathing” such that he “would wake her up to get her to breathe.” This statement has not been specifically addressed by a VA examiner or the RO. Based upon the foregoing, the Board finds that remand is again required to ensure substantial compliance with the prior remand directives and proper consideration of all pertinent lay and medical evidence of record. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA medical examination with a physician, other than Dr. Q.W., possessing the necessary expertise to fully assess and provide an opinion regarding the nature, severity, and etiology of the Veteran’s OSA. The examiner must obtain a full history from the Veteran. It should be noted the Veteran is competent to attest to factual matters of which she has first-hand knowledge, such as observable symptomology. All pertinent symptomology, including any continuity of symptomology since military service, throughout the period on appeal must be reported in detail. Based upon a review of all pertinent documents in the Veteran’s claims file, including medical records, lay statements, and the examination results, the examiner must provide the following opinions: (a.) Whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran’s OSA had its onset during the Veteran’s active duty service. (b.) Whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran’s OSA is due to, related to, or otherwise etiologically associated with an in-service injury, event, or disease. (c.) Whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran’s OSA is proximately due to or aggravated by a service-connected disability including, but not limited to, mental disorders, migraines, bilateral peripheral artery disease, and/or lumbar strain. In offering the above opinion(s), the examiner must consider and discuss as necessary all pertinent lay and medical evidence of record including, but not limited to: (a.) American Academy of Sleep Medicine article submitted July 2020 regarding study finding high risk of OSA in young Veterans with PTSD; (b.) article entitled “Association of Psychiatric Disorders and Sleep Apnea in a Large Cohort” submitted May 2015; (c.) American College of Chest Physicians article entitled “Prevalence of Sleep Disorders Among Soldiers with Combat-Related Posttraumatic Stress Disorder submitted May 2015; (d.) article entitled “Sleep Disorders and Associated Medical Comorbidities in Active Duty Military Personnel submitted May 2015; (e.) article entitled “Sleep disorders in US military personnel: a high rate of comorbid insomnia and obstructive sleep apnea” submitted May 2015; and lay statement by Mr. J.H. dated July 2016. A complete and thorough rationale for any opinion(s) expressed must be provided. (Continued on next page) T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Worsham, Attorney Advisor 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.