Citation Nr: 21003840 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 17-07 714 DATE: January 25, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea, to include as secondary to service connected posttraumatic stress disorder (PTSD) with unspecified depressive disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from November 1967 to October 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a February 3, 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Board additionally notes that whereas the Veteran and/or his representative appears to have initially requested a hearing before a Veterans Law Judge, see VA 646 Statement ( Feb. 16, 2017 ); but cf. VA Form 9 (rec’d Feb. 10, 2017), at Question No. 8 (leaving the hearing selection blank), this request was later withdrawn. See VA Form 21-4138 ( Nov. 8, 2017 ). The Board proceeds accordingly. The Veteran was most recently issued a Supplemental Statement of the Case (SSOC) in July 2020. The Board accordingly reasserts jurisdiction. Ultimately, for the reasons to be articulated below, the Board determines that a remand is required. While the Board sincerely regrets the additional delay that this may cause, but concludes that it is precluded from issuing a final determination at this time. In August 2020, the Veteran requested additional time to submit evidence in support of his appeal. A December 2020 letter granted this Motion for Extension of Time. This requested time period has now expired. This appeal has been advanced on the Board’s docket on account of advanced age. 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). 1. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service connected PTSD with unspecified depressive disorder is remanded. By way of background, the Veteran was issued a rating decision, dated February 3, 2016, in which the claim for PTSD was granted but the claim for sleep apnea was denied. A timely and valid NOD was received in October 2016. In an April 16, 2018 Board decision, the Board made final determinations as pertaining to PTSD. The claim for PTSD is therefore no longer in appellate status. Meanwhile, as to sleep apnea, the Board concluded that the Veteran’s award of service connection for PTSD is new and material evidence, see 38 C.F.R. § 3.156(b), to reopen his claim for service connection for obstructive sleep apnea. The Veteran’s claim was remanded for additional development, to include obtaining updated VA treatment records and obtaining an etiology opinion. See BVA Decision (Apr. 16, 2018). By virtue of having his claim remanded, the Veteran is entitled to substantial compliance with all previous remand directives, see Stegall v. West, 11 Vet. App. 268, 271 (1998); meanwhile, as examinations were ordered by the last remand to determine if obstructive sleep apnea is related to service or is secondary to PTSD, see McLendon, supra, these examinations must be adequate, see Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Board acknowledges that the Veteran was afforded examinations on September 28, 2019, see VA Exams (Sept. 28, 2019) (rec’d Dec. 2, 2019). The Board further acknowledges that the AOJ obtained an addendum opinion to address a particular piece of medical literature identified in an appellate brief and in the last remand. See Appellate Brief (Mar. 30, 2018); BVA Remand (Apr. 16, 2018); VA Exam ( July 13, 2020 ). However, on September 28, 2019, the examiner indicated that a sleep study “had” been performed on October 25, 2019—a date in the future. See VA Exam (Sept. 28, 2019) (rec’d Dec. 2, 2019 ), at Question No. 5A. The Board cannot reconcile the adequacy of an examination with its dependence on “having” performed a sleep study in the future. Moreover, the September 2019 opinion relies entirely on the absence of service treatment notes in support of the opinion for direct service connection. See, e.g., Dalton v. Nicholson, 21 Vet. App. 23 (2007). As a result, the Board remands for an addendum opinion, so that an examiner can clarify whether results from a sleep study may change any results from the last examination of record. See Barr, supra; Stegall, supra. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, forward the claims file to the VA examiner of record who performed examinations on September 28, 2019; or, if they are unavailable, to a similarly qualified VA examiner. The examiner must provide an addendum opinion that specifically indicates the relevance, or lack thereof, of an October 2019 sleep study, and whether those results would change any conclusions from those rendered in September 2019 and July 2020. The need for further in-person examination is left to the discretion of the examiner. The claims file should be made available to the examiner in conjunction with the examination. Any medically indicated tests should be accomplished, and all pertinent symptomatology and findings must be reported in detail. Based on a review of the evidence, the VA examiner should provide the following opinions: (a.) Is it at least as likely as not (50 percent probability or more) that the Veteran’s obstructive sleep apnea is related to his service? (b.) Is at least as likely as not (50 percent probability or more) that the Veteran’s obstructive sleep apnea was caused or aggravated (worsened beyond natural progress) by his service-connected PTSD with unspecified depressive disorder? In providing the requested opinion, the examiner is advised that the term “at least as likely as not” does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that is medically sound to find in favor of causation as to find against causation. A complete rationale for any opinion expressed, to include citation to specific medical documents and clinical findings must be indicated in the report. The Board also asks that the examiner consider the medical literature cited to in the March 2018 Appellate Brief when making his/her opinion. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael B. Engle, 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.