Citation Nr: 21070875 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 13-16 812 DATE: November 26, 2021 REMANDED Entitlement to service connection, to include on a secondary basis, for obstructive sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1969 to August 1971. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a March 2010 rating decision by the Department of Veterans Affairs (VA), Regional Office (RO). The current issue was previously remanded by the Board in November 2017 and June 2020 for further development. Entitlement to service connection, to include on a secondary basis, for obstructive sleep apnea is remanded. The Veteran contends that he is entitled to service connection for an obstructive sleep apnea disability. In accordance with the June 2020 Board remand, the Veteran had an examination for his back condition in December 2020. The examiner opined that it was less likely than not that the Veteran's obstructive sleep apnea condition was aggravated beyond its natural progression by the Veteran's service-connected conditions. The examiner stated that "there is a lack of evidence to support an aggravation of the Veteran's obstructive sleep apnea beyond its natural progression by his service-connected post-traumatic stress disorder (PTSD), diabetes mellitus, bilateral peripheral neuropathy upper and lower extremities, right wrist, hypertension, and left subclavian stenosis. The examiner further opined that it was less likely than not that any of the Veteran's service-connected disabilities caused the Veteran to become obese, to include as due to any lack of exercise resulting from such service-connected disabilities, or from medication taken. The examiner indicated that there is a lack of medical evidence in the Veteran's records to support that any of his conditions, lack of exercise or any of his medications led to his obesity, which contributed to his obstructive sleep apnea. Furthermore, the examiner noted that while obesity greatly increases the risk of sleep apnea, as fat deposits around the upper airway can obstruct breathing, there are many factors that increases an individual's risk for development of sleep apnea. The examiner stated that an individual does not necessarily need to be obese for a diagnosis of obstructive sleep apnea. An addendum medical opinion was obtained in April 2021. The examiner opined that it was less likely than not that the Veteran's sleep apnea was proximately due to or the result of his service-connected conditions. The examiner stated that obesity and diabetes do not cause obstructive sleep apnea. The examiner noted that obesity, regardless of the etiology of the obesity, is a risk factor but does not cause obstructive sleep apnea, in and of itself. The examiner stated that obstructive sleep apnea is due to obstruction of the upper airway with associated apneic episodes. The examiner indicated that individuals of all body types can get obstructive sleep apnea and not all obese people get obstructive sleep apnea. Additionally, the examiner indicated that additional risk factors include neck length, neck circumference, and emphasis on family history and airway anatomy. The examiner further opined that there is no objective evidence of aggravation of the Veteran's sleep apnea beyond its natural course, noting that adjustments of CPAP or even a change to BiPAP does not necessarily constitute aggravation beyond the natural course as it is, within the natural course of the condition. The December 2020 examination and April 2021 medical opinion are not in compliance with the June 2020 remand by the Board. The June 2020 Board remand instructed the examiner to discuss the medical literature indicating a relationship between the PTSD and obstructive sleep apnea provided by the Veteran's attorney in the May 2020 appellate brief. It is not clear whether the December 2020 and April 2021 examiners addressed this evidence. Since the Board's remand instructions have not been complied with, these issues must be remanded again. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Accordingly, remand is appropriate to obtain an additional VA medical opinion regarding the etiology of the Veteran's claimed obstructive sleep apnea disability, to ensure full compliance with the June 2020 Board remand. The matters are REMANDED for the following action: Obtain an addendum medical opinion from a qualified VA medical professional to determine whether it is at least as likely as not that the Veteran's obstructive sleep apnea disability is caused or aggravated by his PTSD or diabetes. Following a review of the entire record, to include the opinions provided in December 2020 and April 2021, the examiner must address the medical literature indicating a relationship between the PTSD and obstructive sleep apnea provided by the Veteran's attorney in the May 2020 appellate brief. See VBMS, document labeled Appellate Brief (VSO IHP; Post remand Brief; Attorney Brief), receipt date 03/10/2020. The examiner must also address the VA treatment records that noted obesity in diabetes and the April 2013 and January 2018 VA opinions noting the Veteran's obesity can affect or otherwise cause his obstructive sleep apnea. See VBMS, document labeled VA Examination, receipt date 4/22/2013; see also VBMS, document labeled C&P Exam, receipt date 02/22/2018. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David M. Sebstead, 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.