Citation Nr: 21069695 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 16-37 648 DATE: November 19, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. REASONS FOR REMAND The Veteran had active military service from September 1990 to January 1994, including service in Southwest Asia from January 1991 to May 1991. This matter comes to the Board of Veterans' Appeals (the Board) on appeal from an October 2014 rating decision in which the Agency of Original Jurisdiction (AOJ) denied entitlement to service connection for obstructive sleep apnea. This rating decision also denied entitlement to service connection for hypertension, posttraumatic stress disorder (PTSD), chronic fatigue syndrome, and unspecified depressive disorder. The Veteran participated in a hearing before the undersigned Veterans Law Judge in December 2018. A transcript of this hearing is of record. In July 2019, the Board dismissed the Veteran's claim for entitlement to service connection for chronic fatigue syndrome and remanded his claims for entitlement to service connection for hypertension, obstructive sleep apnea, and an acquired psychiatric disorder, to include depression. The AOJ subsequently granted entitlement to service connection for hypertension in April 2020, while his claims for entitlement to service connection for obstructive sleep apnea and an acquired psychiatric disorder returned to the Board. The remaining claims were once again remanded by the Board in June 2021 for new Department of Veterans Affairs (VA) examinations, which were performed later in June 2021. The AOJ then granted the Veteran's claim for entitlement to service connection for unspecified depressive disorder in August 2021. The only issue remaining before the Board is entitlement to service connection for obstructive sleep apnea. Entitlement to Service Connection for Obstructive Sleep Apnea The Veteran contends that his obstructive sleep apnea began during his active military service, as he experienced fatigue and difficulty sleeping during his deployment to Southwest Asia. He further asserts that his obstructive sleep apnea was caused by environmental exposure during his service in Southwest Asia. In the alternative, he contends that his obstructive sleep apnea is secondary to his service-connected hypertension and unspecified depressive disorder because they caused weight gain, leading to the development of obstructive sleep apnea. The Veteran's claim was remanded by the Board for new VA medical opinions twice: once in July 2019 and again in June 2021. The Board's July 2019 remand instructed the VA examiner to: (1) opine on whether it is at least as likely as not that the Veteran's obstructive sleep apnea is proximately due to service, to include exposure to contaminants in Southwest Asia; (2) if service connection for a psychiatric disorder is established, opine on whether the service-connected psychiatric disorder caused or aggravated the Veteran's obstructive sleep apnea; (3) consider the medical literature submitted by the Veteran's representative indicating a correlation between depression and obstructive sleep apnea; and (4) address the Veteran's lay assertions of in-service contaminant exposure, sleep impairment, and other symptoms. An addendum opinion was requested by the Board's June 2021 remand. Specifically, the examiner was asked to: (1) opine on whether it is at least as likely as not that the Veteran's obstructive sleep apnea was proximately due to or aggravated by the Veteran's service-connected hypertension; (2) address the February 2020 VA examiner's notation suggesting that sleep apnea can be due to hypertension, as well as the assertions of the Veteran and his representative; (3) state whether the Veteran's hypertension caused or aggravated the Veteran's obesity; and, if it was determined that the Veteran's hypertension caused or aggravated his obesity, state (4) whether it was a substantial factor in causing his obstructive sleep apnea and (5) whether his obstructive sleep apnea would not have occurred but for the obesity caused or aggravated by his service-connected hypertension. The AOJ obtained medical opinions after these remands in February 2020 and June 2021, respectively. However, for the reasons to follow, the February 2020 opinion did not substantially comply with the Board's prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). First, the February 2020 examiner opined that the Veteran's current obstructive sleep apnea is less likely than not due to service and exposure to contaminants during his service in Southwest Asia. His rationale was that there is no evidence of any specific event, illness, or exposure during service that could have caused the Veteran's current obstructive sleep apnea. This rationale is inadequate, as it is conclusory and fails to consider the Veteran's testimony regarding environmental exposure during his deployment to Southwest Asia. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Second, the February 2020 examiner's rationale did not address evidence noted in the Board's July 2019 remand directives. The examiner was asked to consider and address the Veteran's hearing testimony that his symptoms, such as fatigue, difficulty sleeping, breathing cessation during the night, and foaming at the mouth while asleep, began during service. As there is no discussion of these reports of in-service symptoms, the February 2020 opinion is inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); see also Stefl, 21 Vet. App. at 123. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand. Stegall, 11 Vet. App. at 271. As the medical opinions did not address all of the specific questions and evidence required by the Board's previous remands, there was not substantial compliance with the remand directives. Accordingly, another remand is necessary to cure this deficiency. Furthermore, since the requested medical opinions were last obtained, the AOJ granted the Veteran's claim for entitlement to service connection for unspecified depressive disorder. Problematically, the February 2020 VA examiner's opinion regarding the relationship between the Veteran's depression and his obstructive sleep apnea was premised on the fact that the February 2020 examination found that the Veteran had no psychiatric disorder. An addendum opinion is therefore required to reconsider whether the Veteran's obstructive sleep apnea is secondary to his service-connected unspecified depressive disorder, to include whether his unspecified depressive disorder led to obesity that then caused or aggravated his obstructive sleep apnea. The matter is REMANDED for the following action: Obtain an addendum opinion to the February 2020 and June 2021 VA examinations. The claims file must be made available to the examiner. Following review of the claims file, with any necessary examination and testing, the examiner should provide the following opinions: (a.) Is it at least as likely as not that the Veteran's obstructive sleep apnea had its onset during or is related to service, including (1) exposure to environmental contaminants during service in Southwest Asia and/or (2) the Veteran's reports of in-service symptoms such as fatigue, difficulty sleeping, breathing cessation during the night, and foaming at the mouth while sleeping? The examiner must consider the Veteran's December 2018 hearing testimony in rendering this opinion. (b.) Is it at least as likely as not that the Veteran's obstructive sleep apnea: i. Is proximately due to his service-connected unspecified depressive disorder; or ii. Underwent any incremental increase in disability or any additional impairment of earning capacity, regardless of its permanence, due to his service-connected unspecified depressive disorder? The examiner must consider the March 2019 medical literature submitted by the Veteran's representative suggesting a correlation between depression and sleep apnea. (c.) Is it at least as likely as not that the Veteran's service-connected unspecified depressive disorder (1) caused the Veteran to become obese or (2) aggravated the Veteran's obesity? Both causation and aggravation must be addressed. i. If so, is it at least as likely as not that the obesity or aggravation of obesity was a substantial factor in causing the Veteran's current obstructive sleep apnea? ii. Is it at least as likely as not that the Veteran's obstructive sleep apnea would not have occurred but for the obesity caused or aggravated by his service-connected unspecified depressive disorder? Provide a rationale for all opinions proffered. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M. Sachs, 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.