Citation Nr: 21061552 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 14-14 373 DATE: October 4, 2021 REMANDED Entitlement to service connection for neurological disability, to include headaches, dizziness, and balance disorder, as residuals of a traumatic brain injury (TBI) or head injury, is remanded. Entitlement to service connection for sleep disorder, to include REM behavior disorder and obstructive sleep apnea (OSA), as secondary to service-connected psychiatric disorder, is remanded. REASONS FOR REMAND The Veteran served in the United States Army on active duty from April 1967 to April 1970 and January 1971 to January 1974. The issues come before the Board of Veterans' Appeals (Board) on appeal from January 2014 and January 2017 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Board denied the Veteran's claims of entitlement to service connection for a TBI; service connection for disorder manifested by dizziness and balance problems; and service connection for sleep apnea, to include as secondary to PTSD. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In August 2019, the Court granted a Joint Motion for Partial Remand (JMPR). The Court found that VA failed to fulfill its duty to assist in obtaining evidence necessary to substantiate the Veteran's claims. Notably, the Court found the Board relied on inadequate medical examinations in the Board's statement of reasons and bases. Pursuant to the JMPR, the Court vacated and remanded the matter to the Board. In February 2020, the Board remanded to provide further development including VA examinations. The above claims were again before the Board in July 2020 and May 2021. The Board remanded to provide further development. Although the Board regrets further delay, remand is necessary to provide the Veteran with every possible consideration in accordance with the Court's Order. Further development is necessary prior to appellate review to provide the Veteran with adequate VA medical opinions. 1. Entitlement to service connection for a neurological disability, to include headaches, dizziness, and balance disorder, as residuals of a traumatic brain injury (TBI) or head injury, is remanded. The Board notes that the JMPR identified the Veteran's initial claim as headaches, dizziness and balance problems due to a head injury in service sustained in a 1971 motor vehicle accident. Pursuant to the JMPR, the parties agreed that the Veteran's claims should not have been bifurcated. Accordingly, the Board has characterized the Veteran's claim as entitlement to service connection for a neurological disability, to include headaches, dizziness, and balance disorder, as residuals of a TBI and/or head injury. The Veteran contends that he was involved in a motor vehicle accident during service that resulted in his residual symptoms of dizziness, balance problems, and headaches. In June 2021, VA provided the Veteran a medical opinion addressing his claimed headaches, dizziness, and balance disorder as residuals of an in-service head injury. The VA examiner reviewed the Veteran's claims file and stated that the Veteran's available records were objectively silent for evidence of TBI, concussion, or loss of consciousness. The examiner stated that, as there was no TBI diagnosis, there was no indication to complete the remainder of the examination worksheet, to include the 10 Facets for TBI residuals. Further, the examiner noted the Veteran's medical records, both in-service and post-service, were subjectively and objectively silent of complaint, evaluation, diagnosis, or treatment for any headache disorder. However, the VA examiner noted the Veteran's September 1972 service treatment record reported the Veteran's treatment for dizziness and emesis, but noted the record was completely unrelated. The Board finds remand is necessary to provide the Veteran a medical opinion adequately addressing the etiology of the Veteran's disability. VA has a duty to provide the Veteran a thorough medical examination, one which takes into account the Veteran's prior medical history and describes the disability in sufficient detail so that the Board's evaluation of the claimed disability is fully informed. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Absent a reasoned medical explanation and without supporting data, a medical opinion is inadequate to adjudicate the Veteran's claim. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). A mere conclusory medical opinion is insufficient. See Barr, 21 Vet. App. at 312. Without a medical opinion that clearly addresses the relevant facts and medical science, the Board is left to rely on its own lay opinion, which it is forbidden from doing. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Moreover, the VA examiner must address the Veteran's relevant lay statements to provide the Board with an adequate medical opinion. Miller v. Wilkie, 32 Vet. App. 249, 260 (2020). The June 2021 examiner failed to address pieces of evidence favorable to the Veteran, including the Veteran's lay statements noting he was knocked unconscious during his in-service motor vehicle accident and his reported symptomatology, including dizziness, impaired balance, and headaches, since his January 1971 car crash. As the VA medical opinion is inadequate, remand is needed to provide the Veteran an opinion that accurately addresses the Veteran's lay evidence of record and clearly addresses the Veteran's claimed condition. Miller, 32 Vet. App. at 260; see also Barr, 21 Vet. App. at 312. 2. Entitlement to service connection for sleep disorder, to include REM behavior disorder and obstructive sleep apnea (OSA), as secondary to service-connected psychiatric disorder, is remanded. The Veteran contends that he suffers from a sleep condition secondary to his service-connected PTSD and depressive disorder. The RO provided a medical opinion addressing the Veteran's claimed sleep condition in June 2021. The VA examiner noted the evidence of record was silent of a diagnosis of sleep apnea. However, the examiner noted the Veteran's diagnosis of mild sleep apnea in the March 2020 private sleep study. Further, the VA examiner concluded the Veteran's diagnosis of mild sleep apnea did not correlate with the Veteran's service-connected PTSD. The examiner stated that medical literature does not support the contention that altered brain neurochemistry, whether from PTSD or any other mental health condition, results in the biomechanical changes in the tissues of the throat causing OSA. Here, the Board finds the June 2021 VA medical opinion to be inadequate to adjudicate the Veteran's claim. A VA examination must adequately address the Veteran's claimed condition, with a medical opinion providing clear conclusions with supporting data, and a reasoned medical explanation connecting the two. Nieves-Rodriguez, 22 Vet. App. at 301. The June 2021 examination provided an internally inconsistent opinion, which stated the record was silent as to a diagnosis of sleep apnea but did not properly address the Veteran's diagnosis of mild sleep apnea reported in the March 2020 private sleep study. Additionally, the VA examiner did not discuss the medical journal study, submitted by the Veteran's representative in November 2020, which illustrated the association of psychiatric disorders and sleep apnea. Further, the Veteran's medical treatment records demonstrate that the Veteran's wife and caretaker witnessed the Veteran's occasional apneas. The Veteran's wife, as a layperson, is competent to report his observable symptoms and to provide opinions on certain subjective medical issues. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); see also Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The June 2021 examiner failed to address pieces of evidence favorable to the Veteran, including the Veteran's recorded diagnosis of sleep apnea, medical literature linking the Veteran's claimed sleep disorder and his service-connected psychiatric conditions, and the lay evidence of record reporting the Veteran's history of apneas. As the VA medical opinion is inadequate, remand is needed to provide the Veteran an opinion that accurately addresses the Veteran's lay evidence of record and clearly addresses the Veteran's claimed condition. Miller, 32 Vet. App. at 260; see also Barr, 21 Vet. App. at 312. Finally, the Board may recharacterize an issue on appeal, bifurcate an issue, or expand or restrict the scope of a particular claim. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The record contains the Veteran's July 2021 VA sleep clinic consult, which diagnosed the Veteran with REM behavior disorder. The VA physician noted that antidepressants, such as the medication prescribed to the Veteran, can worsen the REM behavior disorder. Here, the record contains evidence that the Veteran has two diagnosed sleep disorders, including sleep apnea and REM behavior disorder. In light of the above, the Board has amended the Veteran's claim to service connection for a sleep disorder, to include sleep apnea and REM behavior disorder, as secondary to the Veteran's PTSD and depressive disorder. Accordingly, remand is required to provide further development addressing the Veteran's claim. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate examiner, other than the examiner who provided the June 2021 opinion, if possible, to determine the etiology of the Veteran's claimed dizziness, balance disorder, and headache conditions. The record and a copy of this Remand must be made available to the examiner. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail, and correlated to a specific diagnosis. Following a review of the evidence of record, the examiner must opine as to: Whether it is at least as likely as not (50 percent probability or more) that the Veteran's neurological disability, to include dizziness, balance disorder, and headaches, had its onset during or is otherwise etiologically related to active-duty service, to include as residuals of a traumatic brain injury (TBI) and/or head injury. For the purposes of this examination, the VA clinician must address the Veteran's lay statements regarding his January 1971 motor vehicle accident, notably the statements regarding his loss of consciousness and reported diagnosis of a concussion. The examiner must provide a comprehensive report including a clearly stated rationale for any opinions offered and conclusions reached, citing the objective medical findings leading to the conclusions, and must not be based solely on the lack of records. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of his disability. If such reports are rejected by the examiner, a reason for doing so must be provided. 2. Schedule the Veteran for a VA examination with an appropriate examiner, other than the examiner who provided the June 2021 opinion, if possible, to determine the etiology of the Veteran's claimed sleep disorder. The record and a copy of this Remand must be made available to the examiner. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail, and correlated to a specific diagnosis. Following a review of the evidence of record, the examiner must opine as to: a) Whether it is at least as likely as not (50 percent probability or more) the Veteran's sleep disorder, to include sleep apnea and REM behavior disorder, was proximately caused by, or the result of, the Veteran's service-connected mental health conditions, including as a result of treatment and/or medication taken for any service-connected disability. b) Whether it is at least as likely as not (50 percent probability or more) the Veteran's sleep disorder, to include sleep apnea and REM behavior disorder, was aggravated by the Veteran's service-connected mental health conditions, including as a result of treatment and/or medication taken for any service-connected disability. For the purposes of this examination the VA clinician must provide a medical opinion regarding the Veteran's diagnosis of REM behavior disorder as it relates to the Veteran's service-connected disabilities or any other attributable condition. Additionally, for the purposes of this examination, the clinician must address the Veteran's medical treatment records, including the diagnosis of mild sleep apnea found in the March 2020 private sleep study, the May 2021 home sleep study, VA sleep clinic treatment records; as well as the competent lay evidence submitted by the Veteran and his wife. The examiner must provide a comprehensive report including a clearly stated rationale for any opinions offered and conclusions reached, citing the objective medical findings leading to the conclusions, and must not be based solely on the lack of records. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran's wife regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of the Veteran's disability. If such reports are rejected by the examiner, a reason for doing so must be provided. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.V. Bona, 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.