Citation Nr: 21075194 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 18-26 552 DATE: December 17, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected schizophrenia, is remanded. REASONS FOR REMAND The Veteran had active military service from June 1971 to May 1972. The Veteran testified at a hearing before the undersigned Veterans Law Judge in December 2020. The Board of Veterans Appeals (Board) previously remanded this matter in July 2021 for further development. When a case is remanded, a veteran is entitled to substantial compliance with all remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). If the Regional Office (RO) does not substantially comply with the Board's remand instructions, the Board is legally bound to continue remanding until the mistake is corrected. See id. Here, the RO did not substantially comply with the July 2021 remand and a remand is once again required. 1. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected schizophrenia, is remanded. The Veteran contends he suffers from obstructive sleep apnea that is caused or aggravated by his service-connected schizophrenia, such that he is entitled to service connection on a secondary basis. The Board notes that the medical evidence reflects the Veteran is considered obese. Specifically, the Veteran contends the antipsychotic medication used to treat his schizophrenia has either aggravated his sleep apnea, or has caused or aggravated his obesity, which in turn has caused or aggravated his sleep apnea. As such, the Veteran offers alternative theories of service connection: (1) aggravation of sleep apnea due to service-connected schizophrenia; and (2) causation or aggravation of sleep apnea based on obesity as an intermediate step between service-connected schizophrenia and sleep apnea. The original VA examiner evaluating the Veteran's sleep apnea claim in April 2018 determined that the sleep apnea was not proximately caused by the Veteran's service-connected schizophrenia. The examiner did not address aggravation nor the theory of obesity as an intermediate step. Therefore, the Board's July 2021 remand specifically sought a medical opinion based on these theories. Specifically, the Board instructed the examiner to consider the effects of the Veteran's anti-psychotic medication, noting the Veteran's current prescription of risperidone. The Board's remand stated, "[t]he Veteran further testified that his medication for schizophrenia, specifically risperidone, caused significantly increased appetite and attendant weight gain." The Board also noted, "VA medical records from January 2015, April 2015, and August 2015 all reflect that the Veteran was advised of weight gain as a side effect of risperidone." Unfortunately, the September 2021 medical opinion provided by a VA clinician referred only to a different anti-psychotic medication, olanzapine, and did not discuss risperidone. The Veteran has not been prescribed olanzapine for many years and was not taking that medication at the time of his diagnosis of sleep apnea. Indeed, the Riverside Sleep Disorders Center medical records from December 2011 specifically annotate that he is currently taking risperidone for schizophrenia. Because the VA clinician addressed only olanzapine, a medication the Veteran has not taken in many years, rather than risperidone, which he contends is responsible for his weight gain/obesity and subsequent development of sleep apnea, the opinion is, regrettably, inadequate. Additionally, aside from the question as to effects of medication, the clinician's September 2021 medical opinion did not adequately address aggravation as a standalone theory of secondary service connection, stating only that schizophrenia "is not an established primary etiology of sleep apnea in the medical literature." The clinician did not discuss or cite any specific medical literature. In summary, the Board finds that a remand is again warranted to obtain a comprehensive and complete medical opinion. The clinician must provide an opinion as to whether the Veteran's sleep apnea is aggravated by schizophrenia, or caused or aggravated by obesity that was caused or aggravated by medication used to treat his schizophrenia (specifically to include the risperidone medication). The matters are REMANDED for the following action: Obtain an addendum opinion from the clinician who provided the September 2021 opinion, or in the alternative from another appropriate clinician, regarding the Veteran's obstructive sleep apneafirst whether the Veteran's sleep apnea is aggravated by his schizophrenia, and second considering obesity as an intermediary step in a causative chain, i.e., whether the Veteran's risperidone or other medication taken to treat schizophrenia caused or aggravated his obesity thereby causing or aggravating his sleep apnea. Following a review of the evidence of record, including but not limited to, the Veteran's testimony at the December 2020 hearing, the medical literature submitted at the hearing, and the 2015 VA treatment records noted above, the clinician must address the following: 1. Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's sleep apnea was aggravated beyond its natural progression by the Veteran's service-connected schizophrenia? 2. With regard to the Veteran's theory of obesity as an intermediate step due to medication, i.e., that the medication taken to treat schizophrenia has caused him to become obese or aggravated his obesity, thereby causing or aggravating his sleep apnea, the examiner shall provide an opinion answering the following questions: (a.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's post-service obesity was CAUSED by risperidone or other medication taken to treat service-connected schizophrenia? (b.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's post-service obesity was AGGRAVATED by risperidone or other medication used to treat the Veteran's service-connected schizophrenia? (Aggravation means the condition increased in severity beyond its natural progression). (c.) If (and only if) the clinician concludes that the answer to (a) or (b) is yes, then the clinician should answer the following question: is it at least as likely as not (a 50 percent or greater probability) that the obesity/aggravation of obesity as a result of the medication used to treat the service-connected schizophrenia was a substantial factor in causing the current sleep apnea? (d.) If (and only if) the clinician concludes that the answer to (a) or (b) is yes, then the clinician should also answer the following question: is it at least as likely as not (a 50 percent or greater probability) that the Veteran's sleep apnea would not have occurred but for the obesity caused/aggravated by the medication used to treat the service-connected schizophrenia? The clinician must provide a clear statement of the underlying reasons for all opinions and conclusions expressed and should discuss any relevant medical research or literature as well as the Veteran's individual factual circumstances. The clinician 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 against it. The Board notes that a perfunctory statement to the effect that there is no aggravation because sleep apnea or obesity is not generally "caused by," "a result of," or "secondary to" schizophrenia, without reference to relevant facts or circumstances, will be considered inadequate, and will necessitate a further detailed opinion. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Medley, 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.