Citation Nr: 21069869 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 17-24 102 DATE: November 22, 2021 REMANDED Entitlement to a higher (compensable) rating for obstructive sleep apnea (OSA) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1981 to March 1990, from January 1991 to December 1994, and from January 2003 to June 2004, to include service in Iraq. In a September 2016 rating decision, the RO granted service connection for OSA and assigned a noncompensable (zero percent) rating, effective April 27, 2012, on the basis of aggravation by a service-connected disability. In September 2020, the Veteran testified via videoconference hearing before the undersigned Veterans Law Judge (VLJ). A copy of the transcript has been associated with the Veteran's claim file. In January 2021, the claim was remanded by the Board to the agency of original jurisdiction (AOJ) for further development. After accomplishing the above, the AOJ continued to deny the Veteran's claim (as reflected in a September 2021 supplemental statement of the case (SSOC)). The Board finds that remand is required because there has not been substantial compliance with the Board's January 2021 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As noted in the January 2021 remand, the Veteran asserted entitlement for a higher rating on the basis that his OSA is directly related to service or is caused by medication used to treat his service-connected spine disability. See May 2017 VA Form 9. The AOJ was directed to obtain VA medical opinion regarding whether the Veteran's OSA was directly related to service/medications to treat his spine disability. In addition, the AOJ was directed to obtain medical opinion to determine the approximate baseline level of severity of the OSA disorder before the onset of aggravation. Pursuant to the Board remand, VA medical opinion was obtained in March 2021. Regarding direct service connection, the VA examiner, opined that the Veteran's OSA was less likely than not related to his active service. As rationale, the VA physician stated that he was "unable to locate a diagnosis of sleep apnea during [the Veteran's] time in service" and that his "[s]eparation examination does not show evidence of sleep apnea symptoms." Regarding secondary service, the VA examiner concluded that it was also less likely than not secondary to any service-connected condition. As rationale, he stated that he was "unable to locate in the claims file that there is any correlation to sleep apnea and the medication taken for [degenerative disc disease (DDD)] and/or mood disorder." In May 2021, the AOJ requested VA addendum opinion, which was provided by J.M., a general practice nurse practitioner. Regarding an approximate baseline level of severity of the OSA before the onset of aggravation, she opined that there is "no evidence [that] shows the OSA has been aggravated by any cause since the initial diagnosis." In August 2021, the AOJ requested further VA addendum opinion, which was provided by J.M. She opined that it was less likely than not that the Veteran's OSA was related to service. As rationale, she stated that the Veteran's service records do not evidence any sleep complaints and that trouble sleeping is not related to OSA as "people with OSA have no trouble sleeping." The examiner also opined that his OSA was less likely than not caused by medication taken for his service-connected DDD or mental health disorder. As rationale, she stated that a "[r]eview of the literature, shows nearly all cite a risk or association with [opioids], benzodiazepines or muscle relaxers however this is not cause. Most cite the risk for central sleep apnea more so than OSA. None of the other pr[e]scribed medications are causes of OSA." However, the Board finds that the examiners' opinions are flawed. First, the examiners' negative etiology opinions on a direct basis again appear to be based entirely on the absence of complaints, treatment, or diagnosis of sleep apnea/sleep issues in service. In the Board's remand directive, it instructed the examiner to address the Veteran's lay assertions regarding the onset of his OSA, which he stated began while he served in Iraq. Thus, the examiner's opinion is inadequate. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination is inadequate where the examiner did not comment on a veteran's report of in-service injury and instead relied on the absence of evidence in a veteran's service medical records to provide a negative opinion). In addition, the addendum opinions neglected to discuss the specific facts relevant to the Veteran's claims and relied only on the absence of medical literature showing a positive connection between OSA and DDD and mental health disorders. As a result, these opinions are inadequate. See Bailey v. O'Rourke, 30 Vet. App. 54, 60 (2018) (reliance on the absence of medical literature supporting nexus without discussing the specific facts of the case renders an opinion inadequate). The matter is REMANDED for the following action: 1. Send the Veteran's claims file to an appropriate physician who is qualified for diagnosing and assessing sleep disorders. The Veteran's entire electronic claims file must be made accessible to the designated physician for review. A detailed rationale for any opinion expressed should be provided. 2. Following the review of the claims file, the examiner must provide an opinion as to the following: (a) Whether it at least as likely as not (a 50 percent probability or greater) that OSA began during active service or is related to any incident of service. (b)Whether it at least as likely as not (a 50 percent probability or greater) that the Veteran's OSA is proximately due to or the result of medication taken for his service-connected DDD and/or mood disorder. (c) If the answers to (a) and (b) are not beneficial to the Veteran, the examiner is requested to provide an opinion as to approximate baseline level of severity of the OSA before the onset of aggravation. The examiner must consider and address the Veteran's lay assertions, to include the December 2015 and September 2020 Board hearing testimonies. The Veteran testified that his current OSA is related to his sleeping issues that began when he was serving in Iraq and may be related to medication he takes for his DDD and mood disorder. If the requested opinions cannot be provided without a new examination, one should be scheduled. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Kovacs, 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.