Citation Nr: 21073239 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 16-63 977 DATE: December 7, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disability to include anxiety and major depression disorder (MDD), to include as secondary to a service-connected disability, is remanded. Service connection for residuals of a cerebral vascular accident (CVA), to include as secondary to a service-connected disability, is remanded. Service connection for sleep apnea, to include as secondary to a service-connected disability, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1973 to September 1975. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2019 and July 2021, the Board remanded the claims for additional development. The case now returns for further appellate review. Additionally, while the AOJ originally adjudicated the Veteran's claims for service connection for anxiety neurosis and depression as separate issues, the Board finds that such are more appropriately characterized as a single issue pursuant to Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). 1. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety and MDD, is remanded. Pursuant to the most recent remand, an addendum opinion was obtained in September 2021 as to the nature and etiology of the Veteran's acquired psychiatric disorder, currently diagnosed as unspecified anxiety disorder and MDD with psychotic features. However, the examiner opined the preponderance of the evidence does not support the Veteran's contentions that such disorders are incurred in or caused by his military service, to include an incident where a soldier in Germany was killed in a car wreck. However, the Board observes the examiner applied the incorrect standard when opining whether the Veteran's disorder was related to service. Specifically, the preponderance of the evidence standard (i.e., greater than a 50 percent chance the claim is true) is higher than the "as likely as not" (i.e., a 50 percent or greater probability) requirement for a veteran to prove his/her claim. Consequently, the Board finds that a remand is necessary in order to obtain a new VA medical opinion that addresses the foregoing matter. 2. Service connection for residuals of CVA, to include as secondary to a service-connected disability, is remanded. In July 2021, the Board remanded the issue of service connection for residuals of a CVA, to obtain an opinion to determine whether the Veteran's CVA residuals were caused or aggravated by his service-connected disabilities, to include the medications taken for such disabilities. Pursuant to the July 2021 Board remand, a VA opinion was obtained in August 2021. Specifically, in the August 2021 VA opinion, the VA examiner opined that the Veteran's residuals of a CVA were less likely than not caused or aggravated by any of the Veteran's service-connected disabilities, to include the medications taken for such disabilities. However, the examiner's rationale did not address the theory of aggravation. Therefore, as the August 2021 VA opinion is flawed, a remand is necessary to obtain a VA opinion that addresses whether the Veteran's residuals of a CVA are aggravated by any of the Veteran's service-connected disabilities, to include the medications taken for such disabilities. 3. Service connection for sleep apnea, to include as secondary to a service-connected disability, is remanded. In July 2021, the Board remanded the issue of service connection for sleep apnea to obtain an opinion to determine whether the Veteran's sleep apnea was due to the Veteran's military service and for an examiner to specifically address the noted in-service episodes of extreme sleeplessness. Pursuant to the July 2021 Board remand, a VA opinion was obtained in August 2021. In the August 2021 VA examination report, a VA examiner opined that it was less likely than not that the Veteran's sleep apnea was incurred in or caused by the claimed in-service injury, event, or illness. In the examiner's rationale, he stated that there was no evidence of sleep disturbance in service, to include a negative answer to frequent trouble sleeping, a hallmark for sleep apnea. The August 2021 opinion is flawed, as the examiner did not address the noted in-service episodes of extreme sleeplessness, as requested by the Board, in its remand directives in July 2021. Therefore, there has not been substantial compliance with the prior Board remand directives and a remand is necessary to obtain a VA opinion that addresses the Veteran's claim of service connection for sleep apnea. The matters are REMANDED for the following action: 1. Return the record, to include a copy of this Remand, to the September 2021 VA examiner, if possible, in order to obtain an addendum opinion addressing the etiology of the Veteran's acquired psychiatric disorder, currently diagnosed as unspecified anxiety disorder and MDD with psychotic features. In this regard, following a review of the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's acquired psychiatric disorder had its onset in, or is otherwise related to, his military service, to include an incident where a soldier in Germany was killed in a car wreck, and/or his diagnoses of anxiety noted in his June 1975 service treatment records. A rationale for any opinion offered should be provided. 2. Obtain a medical opinion from a physician regarding the Veteran's claim of service connection for residuals of a CVA. The physician should review the entire claims file. The physician should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's residuals of a CVA was aggravated (worsened) by his service-connected disabilities, to include any medications required for any service-connected disabilities. The physician must provide a rationale for the opinion. 3. Obtain a medical opinion from a physician regarding the Veteran's claim of service connection for sleep apnea. The physician should review the entire claims file. The physician should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea had its onset in service or is otherwise related to service, to include as due to the Veteran's in-service episodes of extreme sleeplessness. The physician must address the Veteran's in-service episodes of extreme sleeplessness. The physician must provide a rationale for the opinion. Ashley Castillo Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. M. Kelly, 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.