Citation Nr: 21068374 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 11-18 580A DATE: November 10, 2021 REMANDED Entitlement to service connection for a hyperhidrosis disability (claimed as excessive sweating) is remanded. Entitlement to service connection for a sleep apnea disability is remanded. REFERRED The Board notes that issues of entitlement to service connection for traumatic brain injury ("TBI") and Meniere's disease were referred to the Agency of Original Jurisdiction ("AOJ") for adjudication in the Board's November 2015 and January 2017 remands because they were raised in the March 2012 Veteran's statement and in the November 2014 deferred rating decision. However, no adjudication has been done in these matters. Therefore, these issues are again referred to AOJ for adjudication. REASONS FOR REMAND The Veteran served in the U.S. Navy from September 1977 to July 1978 and the U.S. Army from April 1986 to August 1986. This appeal comes before the Board of Veterans' Appeals ("Board") consisting of merged appeal streams, arising from May 2021 and June 2021 orders of the U.S. Court of Appeals for Veterans Claims ("CAVC"). In the May 2021 order, the CAVC granted a joint motion for remand ("JMR"); and vacated and remanded the October 2020 Board's decision that denied entitlement to service connection for sleep apnea. In the June 2021 order, the CAVC granted a JMR; and vacated and remanded the June 2020 Board's decision that denied entitlement to service connection for a hyperhidrosis disability (claimed as excessive sweating). Previously these matters came before the Board from a June 2009 rating decision of the Department of Veterans Affairs ("VA") Regional Office ("RO"). In September 2016, the Veteran testified at a hearing before a Veterans Law Judge ("VLJ"). A transcript of that hearing is associated with the claims file. That VLJ is no longer with the Board. The Board notified the Veteran of this fact in June 2021 and September 2021 letters and provided an opportunity for a new hearing. The record does not show an affirmative response from the Veteran regarding this matter, and assuming the Veteran did not want another hearing based on the June 2021 and September 2021 correspondence, the Board is proceeding accordingly. 1. Entitlement to service connection for a hyperhidrosis disability (claimed as excessive sweating) is remanded. The Veteran contends that he has a hyperhidrosis disability (excessive sweating) due to the side effects of the medication he is taking for controlling the symptoms of the service-connected posttraumatic stress disorder ("PTSD"). Initially, this matter came before the Board in November 2015, and it was remanded for a Board hearing. The Veteran was provided with a Board hearing in September 2016. The matter was returned to the Board in January 2017. In the January 2017 Board decision, the Board found that remand was necessary to afford the Veteran a VA examination addressing his claimed hyperhidrosis disability. The Veteran was afforded a VA examination for his claimed hyperhidrosis disability in February 2017. The case was returned to the Board in October 2017. In the October 2017 Board decision, the Board noted that the February 2017 VA examiner concluded that the Veteran did not have any of the skin conditions listed in the disability benefits questionnaire ("DBQ"); but none of the listed skin conditions were relevant to the Veteran's claim that he has hyperhidrosis due to a psychiatric disability or related medication. Thus, the Board found that remand for another VA examination was necessary. The Veteran underwent a new VA examination for his claimed hyperhidrosis disability in October 2019, during which the examiner opined that the Veteran did not have diagnosed hyperhidrosis. Subsequently, in the June 2020 decision, the Board denied entitlement to service connection for a hyperhidrosis disability (claimed as excessive sweating) and found that the Veteran does not have a hyperhidrosis disability. The Veteran appealed the matter to the CAVC, and in the June 2021 order, the CAVC granted a JMR, and vacated and remanded the June 2020 Board's decision that denied entitlement to a hyperhidrosis disability (claimed as excessive sweating). The CAVC directed the Board to adjudicate the matter consistent with the terms of JMR. The parties (the Veteran and Secretary of VA) to the JMR agreed that the October 2019 VA medical opinion is inadequate because it did not substantially comply with the October 2017 remand instructions, directing the examiner to opine whether the Veteran has a disability manifested by excessive sweating and whether it is was caused or aggravated by the medications to treat the service-connection PTSD. The parties also agreed that the October 2019 VA examination is inadequate because the examiner noted the complaints of functional loss of excessive sweating but did not find the diagnosis of hyperhidrosis and stated that no opinion is needed. The parties to the JMR agreed the Board must obtain a new medical opinion that substantially complies with the Board's October 2017 remand instructions. Additionally, the Board notes that while finding no diagnosis of hyperhidrosis, in the October 2019 VA medical opinion, the examiner did not address the Veteran's statements noted in the February 2017 and October 2019 VA examinations, where the Veteran reported that he sweats profusely all over his body with any activity to the point where his clothes are saturated. Furthermore, the Board notes that in a March 2009 statement, the Veteran's wife stated that the Veteran suffers from extreme night sweats, which necessitates the changing of the bedding and night clothing. Also, in an April 2009 statement, the Veteran's treating primary physician, Dr. Andrew, noted his complaints of excessive sweating, headaches, decreased libido, tinnitus, aggravated amblyopia, blurred vision, short and long term memory problems, and excessive daytime sleepiness. The physician opined that these side effects are a direct result of and consistent with the various medication the Veteran was taking, including Synthroid, Oxycodone, Zoloft, Baclofen, Xanax, Klonopin, Abilify, Caduet Mobic, and Tramadol. Consequently, the Board finds that a remand is warranted to obtain a new VA medical opinion on the nature and etiology of the Veteran's claimed excessive sweating, with adequate rationale that addresses the above described evidence of record. 2. Entitlement to service connection for a sleep apnea disability is remanded. The Veteran contends that his diagnosed sleep apnea is directly related to his military service, including the in-service injury when he rolled down a flight of stairs in May 1986. In his July 2008 statement, the Veteran asserted that his sleep apnea is aggravated by the service-connected PTSD, including the medication he takes to treat PTSD. He also asserted that his supine position sleep apnea is aggravated because he could not sleep on the side due to the service-connected bilateral shoulder disability. This case was first time before the Board in November 2015. The Board remanded the case to afford the Veteran a Board hearing. The Veteran was afforded a Board hearing in September 2016. The case was returned to the Board in January 2017, and the Board remanded the issue of service connection for a sleep apnea disability in order to afford the Veteran a new VA examination for his claimed sleep apnea disability. The Veteran underwent a VA examination for his claimed sleep apnea disability in February 2017. The case was returned to the Board in October 2017. In the October 2017 decision, the Board denied the Veteran's claim of entitlement to service connection for a sleep apnea disability. The Veteran appealed the October 2017 Board decision to the CAVC. In August 2019, the CAVC granted a joint motion for partial remand ("JMPR") and remanded the matter to the Board for adjudication pursuant to JMPR. Subsequently, pursuant to JMPR, the Board remanded the matter in March 2020 to afford a new VA examination to the Veteran for sleep apnea. More specifically, the Board requested a new VA medical opinion concerning whether the Veteran's claimed sleep apnea disability was secondary to his bilateral shoulder disability. The Veteran underwent a new VA examination for his claimed sleep apnea disability in March 2020, and the examiner provided a medical opinion concerning whether the Veteran's claimed sleep apnea disability was secondary to his shoulder disabilities. Subsequently, in the October 2020 decision, the Board denied entitlement to service connection for a sleep apnea disability and found that the Veteran's sleep apnea was not related to active service or secondary to a service-connected disability. The Veteran appealed the matter to the CAVC, and in the May 2021 order, the CAVC granted a JMR, and vacated and remanded the October 2020 Board's decision that denied entitlement to a sleep apnea disability. The CAVC directed the Board to adjudicate the matter consistent with the terms of JMR. The parties (the Veteran and Secretary of VA) to the JMR agreed that the Board must analyze the credibility and probative value of the evidence and provide adequate reasons and bases. The parties also agreed that the Board failed to discuss the Veteran's December 2019 and September 2020 statements requesting an extension to review the evidence of record. In doing so the Board did not provide adequate reasons and bases. The Board notes that subsequently, the Veteran and his representative were provided an opportunity to submit additional arguments. Hence, the Veteran's representative submitted argument in September 2021, in which he asserted that in the February 2017 VA medical opinion, the examiner merely provided a conclusory statement that there is no medical correlation between PTSD and sleep apnea. The representative argued that the Veteran has a supine position sleep apnea, since he has to sleep in supine position due to the service-connected bilateral shoulder condition, which implicates that the service-connected bilateral shoulder condition aggravates sleep apnea. The representative also argued that the March 2020 VA medical opinion is inadequate because the examiner stated that sleep apnea is physiological condition caused by an airway obstruction from soft palate, therefore, sleep apnea is not due to or the result of the service-connected condition; however, the examiner did not medically explain why a physiological condition could not be impacted by the Veteran's shoulder disabilities. The Board notes that in the February 2017 medical opinion, the examiner stated that there is no medical evidence to support the Veteran's sleep apnea was worsened by his service-connected PTSD to include medication to treat PTSD. However, the examiner did not provide a rationale to support the conclusion. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Additionally, no VA medical examiner has opined whether the Veteran's sleep apnea has any direct relationship with the in-service May 1986 head injury as alleged by the Veteran. Hence, the Board finds that a remand is warranted to obtain a new VA medical opinion on the nature and etiology of the Veteran's sleep apnea. The matters are REMANDED for the following action: 1. Obtain a medical opinion on the nature and etiology of the Veteran's claimed excessive sweating disability (hyperhidrosis). In-person examination of the Veteran is left to the discretion of the clinician providing the medical opinion. If the clinician deems such examination is necessary, then an examination should be scheduled. After reviewing the claims file and copy of this remand, the examiner should provide an opinion as to whether the Veteran has a disability manifested by excessive sweating (also claimed as hyperhidrosis), and whether this condition is at least as likely as not (i) proximately due to or (ii) aggravated beyond its natural progression by his service-connected PTSD, including the medication to treat PTSD. In providing the above opinions, the examiner should address the medical and lay evidence associated with the claims file with entries dated (i) 04/28/2009, titled, "Medical Treatment Record Non-Government Facility," which contains an April 2009 letter from the Veteran's treating primary care physician, who opined that the Veteran's excessive sweating is a direct result of and consistent with the various medication the Veteran was taking, including Synthroid, Oxycodone, Zoloft, Baclofen, Xanax, Klonopin, Abilify, Caduet, Mobic, and Tramadol; (ii) 05/01/2009, titled "Medical Treatment Record Non-Government Facility," which is actually the Veteran's wife statement in which she stated that the Veteran experienced extreme night sweats, such that she had to change the bedding every night; (iii) 02/27/2017, titled, "C&P Exam" page number 1 of 17 that contains the February 2017 skin diseases DBQ, noting the Veteran reports, where he stated his excessive sweating began when he started taking medication to treat PTSD; (iv) 10/04/2019, titled, "C&P Exam" page number 1 of 4, which contains an October 2019 VA examination, noting the Veteran's statement that his sweating began when he was placed on medications for PTSD. 2. Obtain a medical opinion on the nature and etiology of the Veteran's diagnosed sleep apnea. In-person examination of the Veteran is left to the discretion of the clinician providing the medical opinion. If the clinician deems such examination is necessary, then an examination should be scheduled. After reviewing the claims file and copy of this remand, the examiner should address the following: (a) Provide an opinion as to whether it is at least as likely as not that the Veteran's diagnosed sleep apnea had its onset during his period of active service, or related to an in-service injury, event, or disease, to include the May 1986 in-service head injury. (b) Provide an opinion as to whether the Veteran's sleep apnea is at least as likely as not (i) proximately due to or (ii) aggravated beyond its natural progression by his service-connected disabilities, including PTSD and bilateral shoulder condition and/or medication used to treat the service-connected disabilities. In providing the above opinions, the examiner should address the medical and lay evidence associated with the claims file with entries dated (i) 04/23/1979, titled "STR-Medical" page number 53 of 64, which contains a May 1986 in-service treatment record noting a head injury with laceration on scalp of approximately 4cm; (ii) 07/11/2008, titled, "Medical Treatment Record Non-Government Facility," page number 8-10 of 16, which contains a September 2007 sleep study report, in which the examiner diagnosed mild position-related sleep apnea occurring in supine position, and opined that the Veteran's excessive daytime sleepiness is most likely on account of his psychiatric medication; (iii) 04/28/2009, titled, "VA21-4138 Statement In Support of Claim," which contains the Veteran's contention that position related sleep apnea is secondary to fall down a flight of stairs while on active duty, and excessive daytime hypersomnolence is secondary to medications; (iv) 09/23/2013, titled, "Third Party Correspondence," in which the Veteran's treating doctor opined that it is at least as likely as not that the Veteran's sleep apnea is secondary to his PTSD; (v) 09/17/2016, titled, "Medical Treatment Record Non-Government Facility," which contains a private doctor opinion, in which the doctor stated that he reviewed the Veteran's medical records thoroughly and opined that the Veteran's sleep apnea is secondary to PTSD; (vi) 09/09/2021, titled, "Appellate Brief (VSO IHP; Post remand Brief; Attorney Brief)," in which the Veteran's representative argued that due to the service-connected bilateral shoulder disability the Veteran has to sleep in supine position, which implies that the shoulder condition aggravates sleep apnea. (Continued on the next page) A complete rationale for the opinions rendered must be provided. If the examiner is unable to provide an opinion without resorting to mere speculation, then the examiner must state this and provide any information needed to make an opinion, if possible. 3. Thereafter, readjudicate the claims on appeal. If the benefit sought remains denied issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning the matter to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tariq, Nadeem, 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.