Citation Nr: 21075556 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 15-02 659 DATE: December 20, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from September 1990 to April 1991, to include service in Southwest Asia. He served a period of active duty for training (ACDUTRA) from November 1988 to June 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded this case in January 2019 and June 2021 for additional development. Unfortunately, as explained below, the Board is not satisfied that there was substantial compliance with its most recent remand. Therefore, the appeal must be remanded once again. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the claims so that the Veteran is afforded every possible consideration. 1. Entitlement to service connection for obstructive sleep apnea is remanded. As an initial matter, the Board notes that the Veteran's claim for service connection for obstructive sleep apnea does not implicate the laws and regulations pertaining to undiagnosed or chronic multisymptom illness for Gulf War veterans. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317. In this case, the Veteran has received a definite diagnosis of obstructive sleep apnea. As such, the provisions of 38 C.F.R. § 3.317 do not apply, despite the Veteran's qualifying Southwest Asia service. The Veteran contends that his obstructive sleep apnea is related to his service, specifically relating to exposure to environmental hazards such as toxic chemicals and live agents due in his duties as a chemical operations specialist in service in Southwest Asia. The Veteran was diagnosed with obstructive sleep apnea in November 2019 and was prescribed a CPAP machine for sleep. Pursuant to the June 2021 remand, the Veteran underwent a VA examination in July 2021 to determine the nature and etiology of his obstructive sleep apnea. Upon examination, the VA examiner confirmed a diagnosis of obstructive sleep apnea. The examiner opined that the Veteran's obstructive sleep apnea was less likely than not incurred in or caused by his service, including exposure to environmental hazards in Southwest Asia. The examiner reasoned that obesity is the primary cause and risk factor for development of obstructive sleep apnuea, noting that the Veteran's BMI in his service treatment records is shown to have been 36.8 which is in the obesity category. The examiner's conclusory statement offered no rationale and is therefore inadequate for adjudication. The Board finds the examiner's conclusory opinion to be inadequate as it does not contain a sufficient medical rationale to support its conclusion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, and sound reasoning for the conclusion that contributes to the probative value of a medical opinion); see also Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (a mere conclusory opinion is insufficient to allow the Board to make an informed decision as to the weight to assign to a medical opinion). In September 2021 the Regional Office (RO) obtained an addendum medical opinion from the same VA physician who provided the July 2021 medical opinion. However, review of the opinion reveals that the response from the examiner did not respond to the request as written and again was inadequate for adjudication. The examiner stated it was less likely than not incurred in or caused by his service, noting that the Veteran's service treatment records are silent for sleep related to symptoms that are consistent with obstructive sleep apnea during his time in service. He further reasoned that no event, injury, or disease related to Gulf War Exposures cause obstructive sleep apnea. The examiner restated that obesity is the cause of the Veteran's obstructive sleep apnea. The Board finds this medical opinion to be inadequate for a number of reasons. First, it does not appear that the examiner considered the Veteran's lay statements regarding the in-service onset of symptoms of daytime fatigue and extensive snoring and continuous symptoms since service. Instead, he based his negative opinion on the lack of an in-service diagnosis of sleep apnea. An opinion based on a lack of in-service treatment or diagnosis without consideration of a veteran's competent reports is inadequate. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007); see also Smith v. Derwinski, 2 Vet. App. 137, 140 (1992). Moreover, the examiner's conclusions that no event, injury, or disease related to Gulf War Exposures cause obstructive sleep apnea, that obesity is the cause of the Veteran's currently obstructive sleep apnea and that the Veteran's in service complaints of insomnia are not related to his current diagnosis of obstructive sleep apnea are all conclusive statements without medical rationales to support the conclusions, rendering the conclusions inadequate for adjudication purposes. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, and sound reasoning for the conclusion that contributes to the probative value of a medical opinion); see also Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (a mere conclusory opinion is insufficient to allow the Board to make an informed decision as to the weight to assign to a medical opinion). Finally, the examiner did not address the Veteran's contention that his sleep apnea is due to his exposure to chemicals while working in his military occupational specialty (MOS) as a chemical operations specialist during service in the July 2021 opinion nor the subsequent September 2021 addendum opinion. In light of the above, the Board finds that the Veteran's claim must be remanded once again because the RO did not comply with the Board's prior remand directive to obtain an adequate medical opinion on the Veteran's behalf. See Stegall, 11 Vet. App. at 268. On remand, an addendum medical opinion must be obtained that is adequate for the Board to make an informed decision on the Veteran's claim. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009). The matters are REMANDED for the following action: 1. Send the claims file to a VA examiner of appropriate expertise (M.D.), WHO HAS NOT PREVIOUSLY PROVIDED AN OPINION IN THIS CASE, to provide an addendum opinion. The entire claims file, to include a copy of this REMAND, must be provided to the examiner and reviewed in full. Thereafter, the examiner should provide a fully-articulated opinion addressing the following: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea was incurred in or otherwise related to the Veteran's service, including exposure to environmental hazards in Southwest Asia? In providing this opinion, the examiner must address the Veteran's duties as a chemical operations specialist, including undergoing live agent training. (b) If it is determined that there is another likely etiology for the Veteran's sleep apnea, that should be stated. The examiner is advised that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. The examiner must provide a complete rationale for any opinions offered, citing to the examiner's own expertise, medical principals, and/or evidence in the Veteran's record, when necessary, to support the conclusion reached. If an opinion cannot be reached without resorting to speculation, the examiner must fully explain why that is so. The Board reminds the examiner that failure to comply with the examination directives outlined herein will render the opinions inadequate and will result in further remand of the Veteran's claims. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Rosenthal, Ariana 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.