Citation Nr: 21065052 Decision Date: 10/23/21 Archive Date: 10/23/21 DOCKET NO. 18-49 915A DATE: October 23, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a cardiac disability, to include hypertrophic cardiomyopathy, is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1973 to December 1993. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The case was previously before the Board in July 2019, November 2020, and May 2021 when it was remanded for further development. 1. Entitlement to service connection for sleep apnea is remanded. The Board finds that another remand is required because there was not substantial compliance with the mandates of the May 2021 Board remand. In the May 2021 remand, the Board requested an addendum opinion addressing the etiology of the Veteran's sleep apnea. A VA opinion was obtained in July 2021. In the rationale, the examiner stated that the Veteran was diagnosed with mild obstructive sleep apnea (OSA) in 2015. The examiner stated "There is no evidence to support onset in 2004 though the veteran states he had a sleep study. If the veteran had a sleep study in 2004 and it showed OSA, aggravation clearly has not occurred as the veteran was mild at the time of official diagnosis." The examiner stated, "Based on the severity, it more likely than not had its onset closer to 2015." However, a December 2008 private sleep study reflects that the Veteran was recently found to have had "very severe obstructive sleep apnea." The private treatment records indicate that he was diagnosed with sleep apnea in 2008. As the July 2021 opinion is based on an inaccurate factual premise, the rationale is inadequate and the claim must be remanded to obtain a new opinion. See Reonal v. Brown, 5 Vet. App. 4458, 460-61 (1993). As noted in the May 2021 remand, the examiner relied on the Veteran's separation examination that indicated the Veteran did not have any sleep issues. However, the Veteran contended that he did not have a separation examination and a previous flight physical was considered sufficient. The Board noted that the statements were not considered by the physician regarding the onset of the Veteran's sleep apnea. In the July 2021 opinion, the examiner stated that it was highly unlikely a sleep disorder would have gone unnoted and unreported at separation. Therefore, it appears the examiner again relied on the July 1993 flight physical report of medical history, which was completed several months prior to the Veteran's separation from service in December 1993. Finally, the May 2021 examiner also addressed whether the sleep apnea was related to the Veteran's weight gain which was caused by his inability to exercise due to his service-connected spine and lower extremity disabilities. In the rationale for the opinion, the examiner stated that the Veteran had been obese since at least January 2005, which was 10 years prior to diagnosis. As the December 2008 sleep study indicates the statement is inaccurate, a new opinion must be obtained. 2. Entitlement to service connection for a cardiac disability In the May 2021 remand, the Board remanded the issue of entitlement to service connection for a cardiac disability to obtain a VA examination for direct service connection for his hypertrophic cardiomyopathy. The Board specifically noted that the examiner should address whether the Veteran had a cardiac disability that was etiologically related to military service, including his reported cardiac symptoms and findings during service. In a February 2021 statement, the Veteran reported that he was diagnosed with right axis deviation (RAD) and premature ventricular contractions (PVC) in service. He asserted that he had an EKG taken in service in 1993 that indicated the same undetected heart condition that was found in 2011. June 1992 and July 1993 Electrocardiographic (ECG) Records indicate that the Veteran had right axis deviation. The June 1992 record noted that the Veteran had mild right axis deviation, unchanged from the previous ECG in 1989. A VA opinion was obtained in June 2021. The examiner opined that the Veteran's hypertrophic cardiomyopathy was less likely than not incurred in or caused by the claimed in-service injury, event or illness. As a rationale, the examiner stated that the current diagnosis of hypertrophic cardiomyopathy was not established until 2011 per current objective evidence in the claims file, more than 18 years after service. However, the examiner did not address the ECG records noting that the Veteran had right axis deviation in service, as requested in the remand. Therefore, the opinion is inadequate and the claim must be remanded for a new opinion. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an examiner other than the examiner who provided the June 2021 opinion, addressing the etiology of the Veteran's sleep apnea. The examiner must review the claims file. The examiner is asked to provide a response to the following: a) Is the Veteran's sleep apnea at least as likely as not related to service, including his reported snoring, gasping, and other sleep symptoms in service? The examiner should address the September 2020 and February 2021 lay statements of the Veteran and his spouse. The Board also notes that the July 1993 flight physical report of medical history was completed prior to the Veteran's separation from service in December 1993. The examiner should address the December 2008 private sleep study stating that the Veteran was recently found to have had "very severe obstructive sleep apnea." b) Is sleep apnea at least as likely as not proximately due to the Veteran's service-connected deviated nasal septum? c) Is the sleep apnea at least as likely as not aggravated, i.e., worsened beyond its natural progression, by the Veteran's service-connected deviated nasal septum? d) Is it at least as likely as not that the Veteran's service-connected degenerative arthritis of the lumbar spine, degenerative arthritis of the cervical spine, and/or radiculopathy of the left and right lower extremities caused him to become obese (to the extent that these disabilities limited his ability to exercise). If so, is it at least as likely as not that (1) the Veteran's obesity was a substantial factor in causing his sleep apnea and (2) any such sleep apnea would not have occurred but for the obesity? A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 2. Obtain an addendum opinion addressing the etiology of the Veteran's hypertrophic cardiomyopathy. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is the Veteran's hypertrophic cardiomyopathy at least as likely as not related to service, including the right axis deviation noted on the June 1992 and July 1993 ECGs in service? A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Marenna, 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.