Citation Nr: 21071046
Decision Date: 11/29/21	Archive Date: 11/29/21

DOCKET NO. 15-30 486
DATE: November 29, 2021

REMANDED

Entitlement to service connection for sleep apnea, to include as secondary to a service-connected disability (including posttraumatic stress disorder (PTSD)) is remanded.

REASONS FOR REMAND

The Veteran served on active duty from May 1968 to May 1970.    

This case has been before the Board multiple times, most recently in  July 2020 when it was remanded for additional developments. There has not been substantial compliance with the remand directives and the claim must be remanded again.  Stegall v. West, 11 Vet. App. 268 (1998).    

Entitlement to service connection for sleep apnea, to include as secondary to a service-connected disability (including posttraumatic stress disorder (PTSD)) is remanded.

The claim for sleep apnea was remanded to afford the Veteran an examination and determine the nature and etiology of his sleep apnea.  The October 2021 VA opinion obtained in accordance with the remand is inadequate.  That examiner provided negative opinions as to whether the Veteran's sleep apnea was related to service and whether it was caused by the Veteran's service-connected PTSD, but did not address aggravation.  Accordingly, a new opinion is necessary.

The Board also notes that the remand directed the Agency of Original Jurisdiction (AOJ) to ascertain the Veteran's current contact information and to specially afford him an examination, not just an opinion based on review of the record.  On remand, the AOJ should once again attempt to ascertain the Veteran's current contact information and afford him an examination.  If an examination cannot be scheduled an addendum opinion should be obtained.  The Board notes that while VA has a duty to assist a veteran in the development of his claim, this duty is not limitless.  It is the Veteran's duty to keep VA apprised of his whereabouts and, if he does not do so, VA is not obligated to "turn up heaven and earth" to find him.  Hyson v. Brown, 5 Vet. App. 262.

The matters are REMANDED for the following action:

1. Take all appropriate action to verify the Veteran's current address and telephone number.

2. After completion of the above, schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the etiology of his sleep apnea. Copies of all pertinent records should be made available to the examiner for review. Based on an examination, review of the record, and any tests or studies deemed necessary the examiner should provide opinions as to the following (using/completing Sections IV and VI of the Medical Opinion Disability Benefits Questionnaire):

Is it at least as likely as not that the Veteran's sleep apnea is (i) caused or (ii) aggravated by (defined as any increase in disability) one or more of the Veteran's service-connected disabilities, to include his PTSD? Why or why not?   

The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate.  If an opinion cannot be provided, the examiner should indicate why. 

Confirm that the VA medical opinions provided comports with this remand, specifically that the standard for the secondary aggravation opinion is any increase in disability, not the standard of beyond the natural progression as noted on the examination form itself. If not, get an addendum.  

 

 

J. Kirby

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Eric Struening

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.