Citation Nr: 21072869 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 14-21 058A DATE: December 6, 2021 ORDER Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities, is granted. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, his sleep apnea is at least as likely as not related to active duty service, to include as secondary to service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities, have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training from June 1972 through October 1972, and on active duty in the United States Army from March 2005 to June 2006 and from January 2008 to February 2009. He had additional periods of Reserve service in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2018, December 2018, and October 2019, the Board remanded these matters to the RO for additional development and to obtain VA medical opinions. This matter was then denied by the Board in April 2020 and the Veteran timely appealed to the Court of Appeals for Veterans Claims (the Court). In an April 2021 Joint Motion for Remand, the Court remanded the matter for further adjudication after it was determined that the Board failed to address a December 2019 VA medical opinion obtained pursuant to the October 2019 Board remand. The Board subsequently remanded the matter in September 2021 to obtain a new VA opinion. However, despite the RO obtaining an addendum opinion in September 2021, the VA examiner failed to provide a thorough supporting rationale for the opinion. As such, the Board finds there was not substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-147 (1999). Despite this, the Board finds there is adequate evidence in the record to decide the matter of service connection for sleep apnea, and another remand to develop this issue is not required. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities The Veteran seeks entitlement to service connection for sleep apnea, which he contends is related to active duty service. Specifically, he contends that his sleep apnea was caused by environmental exposure to burn pits in Iraq. Alternatively, he alleges that his service-connected posttraumatic stress disorder (PTSD) and depression caused or aggravated his sleep apnea because he never had sleeping issues before serving in Iraq where he developed psychiatric disorders. Finally, he contends that his service-connected acquired psychiatric disorders caused or aggravated his alcohol abuse and/or obesity, which, in turn, caused or aggravated his sleep apnea. After considering all the evidence of record, the Board determines that service connection is warranted for sleep apnea. First, during active duty service, the Veteran reported in a post-deployment health assessment in January 2009 that he went to sick call for problems sleeping or still feeling tired after sleeping. One month after service, in March 2009, the Veteran reported sleep disturbances resulting in only 3 4 hours of sleep per night. He reported that his symptoms began after returning from Iraq in 2006, but that they had worsened from returning Guantanamo Bay in 2009. Next, the Veteran consistently sought treatment for difficulty sleeping and fatigue after separating from service and was eventually diagnosed with sleep apnea in January 2011 after undergoing a sleep study. He was prescribed a CPAP machine. In January 2011, the Veteran's physician noted that the Veteran's sleep apnea may be induced by the Veteran's history of alcohol consumption. Similarly, during a December 2019 VA examination, the examiner stated that the Veteran's age, sex, obesity, and history of alcohol abuse are the most likely causes of his obstructive sleep apnea, as sleep apnea is a mechanical obstruction of the airway, which can be caused by fat deposits within the upper airway and reduction in lung volume. Next, the medical evidence of record supports that the Veteran's service-connected psychiatric disorders, to include PTSD and depression, caused or aggravated his alcohol abuse, which caused or aggravated his obstructive sleep apnea. Specifically, the Veteran was hospitalized for major depressive disorder in July 2009 due to psychiatric symptoms, including suicidal ideation, and the hospitalization records indicate the Veteran had a history of alcohol consumption, especially on the day his suicidal ideation began. Medical records between July 2009 and December 2009, within one year of separating from service, reveal alcohol abuse by the Veteran, but reports of alcohol abuse prior to periods of active duty service are not found in the record, further suggesting that his psychiatric symptoms caused or aggravated his alcoholism. Based on the evidence of record, it is at least as likely as not that the Veteran's service-connected PTSD and depression caused or aggravated his alcohol abuse, which in turn, caused or aggravated his sleep apnea. In making this decision, the Board acknowledges the negative evidence of record, including VA opinions from May 2018, June 2018, May 2019, December 2019, and September 2021. However, these examinations were inadequate because they did not consider all theories of entitlement for service connection, including secondary service connection, or the examiners failed to provide adequate supporting rationale for negative nexus opinions. Specifically, the September 2021 VA examiner noted that obesity and/or alcohol abuse can be associated with PTSD and depression, but that "medical records review did not reveal consistent clinical evidence for PTSD with depression to negatively impact and proximately cause obesity and/or his alcohol abuse condition." The examiner failed to discuss any of the evidence from the record cited above that suggests the Veteran's alcohol abuse was caused or aggravated by his service-connected psychiatric disorders. As such, the Board finds these opinions are inadequate and not probative. Ultimately, affording the Veteran the benefit of the doubt, the weight of the evidence supports service connection for sleep apnea, to include as secondary to a service-connected disability. Thus, service connection should be granted. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Veltri, Associate Counsel