Citation Nr: 21003889 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 20-09 257 DATE: January 25, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected acquired psychiatric disability, is remanded. REASONS FOR REMAND The Veteran served on active duty from December1967 to December 1969 in the United States Army. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2020, the Board remanded the Veteran’s claim. During remand status, VA provided the Veteran with a VA Form 21-4142 (Authorization to Disclose Information to VA) for VA to obtain his private treatment records. However, the Veteran did not return a completed VA Form 21-4142. The Board notes VA’s duty to assist in the development of claims is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). Entitlement to service connection for OSA, to include as secondary to service-connected PTSD, is remanded. The Veteran contends that he has experienced OSA since service and that his sleep problems have been going on since 1969. See NOD (July 2018). Alternatively, the Veteran, and his representative, contends that his OSA is secondary to his service-connected acquired psychiatric disability. See VA 21-4138 Statement In Support of Claim (May 2018); NOD (July 2018). For the following reasons, the Board finds that remand is again necessary. 38 C.F.R. § 3.159(c); Stegall v. West, 11 Vet. App. 268 (1998). It is uncontroverted that the Veteran has a diagnosis of OSA. In April 2020, the Board remanded the Veteran’s claim with instructions for a medical opinion to, among other things, consider the Veteran’s lay statements regarding history of “sleep disturbance” since service. Although a May 2020 VA medical opinion (VAMO) was obtained, which reflects that OSA is less likely due to service or aggravated by his service-connected mental disorder, it is inadequate because negative conclusions reached are not supported with an analysis that is adequate for the Board to consider and weigh against other evidence of record. See Stefl v. Nicholson, 21 Vet. App. 102, 124-25. Further, it provides no reasoned medical explanation connecting the conclusion to any identified supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). First, the May 2020 VAMO relied on normal findings at enlistment and separation to support the negative conclusion reached. However, service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). Second, the May 2020 VAMO does not reflect any meaningful consideration of lay statements indicating that the Veteran has been experiencing sleep disturbance since service. See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) (“the VA examiner’s failure to consider [the Veteran’s] testimony when formulating her opinion renders that opinion inadequate.”). The VAMO makes no mention of the Veteran’s lay statements, despite the Board’s specific instructions to do so. See Stegall, supra. Third, as to secondary service connection, the 2020 VAMO contains conclusions that are not fully supported and/or explained. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (indicating 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)). The opinion lacks an essential rationale although it concludes that the nonservice-connected OSA is unrelated to the Veteran’s service-connected disorders and, thus, “No plausible secondary nexus is established” and “No plausible aggravation nexus is established.” Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (An adequate medical examination report or opinion must also “sufficiently inform the Board of a medical expert’s judgment on a medical question and the essential rationale for that opinion.”). Fourth, although the 2020 VAMO indicated that there is no indication of the “pathophysiology of how PTSD would cause or aggravate OSA” and that the “there is overwhelming evidence that OSA is caused by obesity,” it does not provide separate rationales to support the negative conclusions as to causation and aggravation elements of the secondary service connection, which are independent concepts. See Atencio v. O’Rourke, 30 Vet. App. 74, 90 (2018) (an examiner must provide a rationale that deals with causation and aggravation as independent concepts). Fifth, the 2020 VAMO, in addressing whether the Veteran’s OSA was aggravated by PTSD, was based on one general medical study from webmd.com without addressing the Veteran’s specific disability picture. See Bailey v. O’Rourke, 30 Vet. App. 54, 60 (2018). See also, Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009) (although general medical research may be considered, it cannot be the sole basis for examiner’s conclusion). Given the above, the Board finds that there has not been substantial compliance with the Board’s prior remand directives. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall, supra. To the extent that the Veteran argues that his STRs are incomplete, the record contains STRs for the two years of service between December 1967 and December 1969, including enlistment and separation physicals. In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran’s assertions. Neither the Veteran’s credibility nor any lack thereof should be presumed in this remand. The matters are REMANDED for the following action: 1. Ask the Veteran to provide supporting evidence in his possession to include copies of any STRs that he believes are missing given that VA has obtained all available STRs through official sources. 2. Obtain the Veteran’s VA treatment records for the period from July 2020 to the Present. 3. Thereafter, obtain an opinion from an appropriate clinician to determine the nature and etiology of the Veteran’s diagnosed OSA. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. The opinion should reflect consideration of the Veteran’s documented relevant history and assertions, to include history of “severe difficulty with sleep, which began in Vietnam.” See CAPRI (January 2020) (July 2005). The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. The clinician must opine on: (a.) Whether OSA, at least as likely as not, was first manifested during the Veteran’s active service. Consider and expressly address the lay evidence indicating that Veteran had severe difficulty sleeping that began in Vietnam. Explain. i. Detail the Veteran’s reported symptoms in service and thereafter, including the nature, onset, progression and severity of his reported symptoms. ii. If there is any medical reason to accept or reject the proposition that his reported symptoms in service (i.e. difficulty sleeping) and thereafter represented the onset of his current OSA, this should be noted. iii. Discuss the Veteran’s risk factors for OSA and their role, if any, in his currently diagnosed OSA. (b.) Whether OSA is at least as likely as not (1) proximately caused by or the result of service-connected acquired psychiatric disorder, or (2) aggravated beyond its natural progression by service-connected acquired psychiatric disorder. If yes, a pre-aggravation baseline level of disability must be provided. The clinician must provide a rationale that deals with causation and aggravation as independent concepts. See Atencio, supra. 4. Ensure that the medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. M. Pesin 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.