Citation Nr: 21075927 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 13-06 348A DATE: December 21, 2021 REMANDED Service connection for sleep apnea, to include as due to herbicide (Agent Orange) exposure, and to include as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran had active duty service in the U.S. Army from October 1967 to May 1970. He served in the Republic of Vietnam during the Vietnam era. His awards and decorations include the Purple Heart Medal for sustaining a combat wound during his military service, and the Bronze Star Medal for participation in combat against the enemy in Vietnam. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 2014 rating decision issued by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In October 2016, the Veteran presented testimony at a Travel Board hearing before a Veterans Law Judge who has since retired from the Board. Regardless, this hearing testimony did not involve any substantive discussion regarding the sleep apnea issue on appeal. In January 2018, November 2020, and July 2021, the Board remanded the appeal for further development. This case has since been returned to the Board for appellate review, after the AOJ complied with all but one of the instructions contained in the Board's remand orders, as discussed in detail further below. Service connection for sleep apnea, to include as due to herbicide (Agent Orange) exposure, and to include as secondary to service-connected PTSD, is REMANDED. A remand by the Board confers on the claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, substantial compliance with the remand order, but not strict compliance, is required. Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1999). In any event, a failure by the Board to ensure compliance with previous remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Stegall, 11 Vet. App. at 271. In the present case, the AOJ did not substantially comply with one particular aspect of the development requested in the Board's most recent July 2021 Board remand. In this regard, in order to comply with the instructions of the July 2021 Board remand, the AOJ secured a September 2021 VA addendum opinion by a VA staff physician. This VA addendum opinion addressed the etiology of the Veteran's sleep apnea disorder. The September 2021 VA physician provided a negative nexus opinion for both direct and secondary service connection for sleep apnea. Nevertheless, although probative, the September 2021 VA medical opinion was not fully adequate. On this point, when VA provides a VA examination or obtains a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As such, the AOJ must obtain a new VA addendum opinion addressing the etiology of the Veteran's sleep apnea disorder from the same September 2021 VA physician, if possible. Specifically, the September 2021 VA physician failed to directly answer one aspect of the etiology question as posed by the Board, for the sleep apnea issue on appeal. Specifically, in providing his opinions on the etiology question, the September 2021 VA physician was instructed that he "must consider and specifically discuss the evidence submitted by the Veteran, including, but not limited to" a March 2011 article "Posttraumatic Stress Disorder, Sleep, and Breathing" by the American College of Chest Physicians. Importantly, this medical treatise article concluded that "a background of hyperarousability in patients with PTSD creates instability of sleep continuity. This instability probably contributes to the development of both OSA and central sleep apnea." However, in the September 2021 VA addendum opinion, although the VA physician provided a probative medical opinion against a nexus for sleep apnea on both a direct and secondary basis, the VA physician in his opinion advised that he was unable to locate in the claims file the above listed medical treatise article. Therefore, in formulating his medical opinion on etiology, the VA physician did not consider or discuss this medical treatise article. On this issue, the Court has held that an adequate medical opinion with regard to etiology should consist of a discussion of all relevant evidence. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The Court has also held that a VA medical examiner's conclusions were of "questionable probative value" when the VA examiner failed to consider certain relevant information. Mariano v. Principi, 17, Vet. App. 305, 312 (2003). Because the September 2021 VA physician was unable to locate this pertinent medical treatise article in the claims file, he failed to review or discuss same, in the context of determining whether the Veteran's current sleep apnea disorder was caused or aggravated by his service-connected PTSD disability. Other than this oversight, the September 2021 VA addendum opinion was detailed and well-written. Therefore, the AOJ must obtain a VA addendum opinion from the September 2021 VA physician. In rendering this opinion, the VA physician should review and address the above March 2011 medical treatise article that reflected upon a potential relationship between PTSD and sleep apnea. (This time the AOJ must ensure that it provides a copy of the above March 2011 medical treatise article to the VA physician for his review). The VA addendum opinion should indicate whether a review and discussion of this medical treatise evidence changes the previous negative opinion proffered on the issue of secondary service connection for sleep apnea. If the same September 2021 VA physician is not available, another qualified VA clinician will provide the addendum opinion. Another VA examination for the Veteran's sleep apnea disorder is not necessary unless the VA clinician specifically requests one. This matter is REMANDED for the following action: For the sleep apnea disorder, secure a VA addendum opinion from the VA physician who proffered the earlier September 2021 VA addendum opinion. If this VA physician is no longer available, another qualified VA clinician must provide the addendum opinion. The VA examiner must review the claims file. The VA examiner must provide a rationale to support the opinion. Only if deemed necessary by the VA examiner is another VA sleep apnea examination necessary. The VA examiner must comply with following instructions: (a.) The AOJ must ensure that it provides a copy of the following for the VA examiner to review - a medical treatise article titled "Posttraumatic Stress Disorder, Sleep, and Breathing" from the American College of Chest Physicians dated March 5, 2011, accessed on the Internet on September 20, 2012, and received on the electronic Veterans Benefits Management System (VBMS) on October 21, 2013. It is currently located on VBMS as document number 345 of 541. The AOJ must provide a copy of this medical treatise article to the VA examiner or direct the VA examiner to its electronic location on VBMS. The VA examiner is advised that this medical treatise article, when addressing sleep apnea, found that "a background of hyperarousability in patients with PTSD creates instability of sleep continuity. This instability probably contributes to the development of both OSA and central sleep apnea." (b.) The VA examiner must review and discuss the above medical treatise article. The VA examiner must opine whether a review and discussion of this particular medical treatise article changes his earlier negative VA medical opinion dated in September 2021, which assessed that the Veteran's sleep apnea disorder was NOT caused or aggravated by his service-connected PTSD disability. In other words, does a review of this additional medical treatise article change the previous negative opinion in any way? DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.S. Rubin, 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.