Citation Nr: 21010504 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 15-35 321 DATE: February 25, 2021 REMANDED The issue of service connection for sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD) or diabetes mellitus, is remanded. REASONS FOR REMAND The Veteran had active military service from December 1968 to June 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in which the RO, inter alia, denied service connection for sleep apnea. The Veteran disagreed with that decision and subsequently perfected an appeal. In July 2019, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ); unfortunately, a transcript of that hearing could not be produced. The Veteran was given the opportunity for another Board hearing and in January 2021, the Veteran testified at a Board hearing before the undersigned VLJ; the Veteran also presented testimony at a hearing before a decision review officer. Transcripts of both of those hearings have been associated with the record. The instant matter was previously before the Board in August 2019 at which time it was remanded for further development, to include obtaining an addendum medical opinion. Upon completion of the requested development, the agency of original jurisdiction (AOJ) issued a supplemental statement of the case (SSOC) in which it continued to deny service connection for sleep apnea. The matter was thereafter returned to the Board for further appellate review. Unfortunately, the matter must again be remanded for further AOJ action on the claim on appeal even though such will, regrettably, further delay an appellate decision on these matters. As noted, the matter was previously remanded for the AOJ to obtain an addendum medical opinion. Specifically, the Board directed that a VA clinician was to review the Veteran’s claims file and provide an opinion regarding the likelihood that the Veteran’s diagnosed sleep apnea is related to service. In doing so, the clinician was directed to consider the Veteran’s competent and credible lay statements regarding sleep problems during active duty, to include snoring and waking up with breathing issues, as well as the Veteran’s wife statements regarding her observations of the Veteran’s snoring and breathing problems during sleep since 1972. In November 2019, a VA clinician reviewed the Veteran’s claims file and opined that it is less likely than not that the Veteran’s diagnosed sleep apnea is related to service. As rationale for that opinion, the clinician noted that the Veteran had been diagnosed with sleep apnea in 2003, 30 years after separation from service. The clinician acknowledged that the Veteran and his wife are competent to report historical details, such as a history of snoring or observed apneas, but stated that they are not competent as medical professionals to provide a diagnosis, noting that snoring and witnessed apneas can be present in an individual who does not fulfill the criteria for a diagnosis of sleep apnea. The clinician then went on to note that sleep apnea may be associated with PTSD but has not been shown to cause sleep apnea. The clinician additionally stated that diabetes can lead to nerve damage but has not been shown to cause sleep apnea. Here, although the VA clinician provided the requested opinion, the Board finds the stated rationale to be lacking in detail. Indeed, it is unclear to what extent the examiner considered the competent and credible lay evidence of record, as the examiner provided no reasoning as to why the Veteran’s observed snoring and breathing problems during sleep were not indicative of sleep apnea in or shortly after service. Rather, the rationale provided seemingly relies only on the absence of records documenting treatment or diagnosis of sleep apnea in service. The Board notes that for an award of service connection to be made, it need not be definitively shown that a disability was incurred or diagnosed in service; rather, service connection may be granted for any injury or disease diagnosed after service where the evidence establishes that such disability is attributable to an injury or event in service. See 38 C.F.R. § 3.303(b). Overall, without specific discussion of the Veteran’s lay statements regarding onset and continuity of symptoms or explanation for why such symptoms are not indicative of sleep apnea, the Board cannot rely on the VA examiner’s opinion that it is less likely than not that the Veteran’s current sleep apnea is related to service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (providing that a “medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two”). Another remand of the Veteran’s claim for service connection for sleep apnea is therefore required for a new opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Stegall v. West, 11 Vet. App. 268, 270 (1998) (holding that a remand by the Board confers on a veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA “a concomitant duty to ensure compliance with the terms of the remand”); 38 C.F.R. § 3.159(c)(4). A remand is also required for the AOJ to obtain a medical opinion with regard to the Veteran’s sleep apnea claim, based on the alternative theory of secondary service connection raised during the pendency of this appeal. Notably, in June 2018, the Veteran filed a VA Form 21-526EZ in which he stated that he was seeking entitlement to service connection for sleep apnea secondary to his service-connected PTSD. No action was taken in response to this filing. Further, in correspondence received in November 2019, the Veteran’s representative cited to studies suggesting an association between PTSD and sleep apnea. The Veteran’s representative also noted that diabetes, for which the Veteran is also service connected, can cause nerve damage and pointed out that sleep apnea involves and overrelaxation of the airway, which the representative suggested was a problem with the nerves that control the muscles. Although the November 2019 VA clinician acknowledged the argument of the Veteran’s representative, the clinician did not provide an adequate opinion with regard to secondary service connection, as she just generally stated that neither PTSD nor diabetes has been shown to cause sleep apnea and did not address aggravation. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (holding that secondary service connection is a two-part issue that involves analysis of causation and analysis of aggravation); 38 C.F.R. § 3.310. The matter is REMANDED for the following action: Arrange to obtain a medical opinion from an appropriate clinician addressing the etiology of the Veteran’s diagnosed sleep apnea, based on claims file review. (Only arrange for the Veteran to undergo VA examination, by an appropriate clinician, if one is deemed necessary in the judgment of the individual designated to provide the addendum opinion.) The contents of the entire, electronic claims file must be made available to the designated clinician. Upon review of the claims file, the clinician should provide an opinion to whether the Veteran’s diagnosed sleep apnea is at least as likely as not related to the Veteran’s period of military service. Complete, clearly-stated rationale for the conclusions reached must be provided. In rendering the opinion, the clinician is reminded that the absence of documented evidence of a specific diagnosed disability in service should not, alone, serve as the sole basis for any negative opinion. The clinician must consider and discuss all medical and other objective evidence of record, as well as all lay assertions, to specifically include the Veteran’s and his wife’s lay statements regarding the onset and continuity of breathing disturbances and snoring during sleep, which assertions have been deemed credible. If the clinician finds that the onset of symptoms such as these in or shortly after service are not indicative of sleep apnea, the clinician must provide specific reasons for his/her determination. An opinion should also be rendered as to whether it is at least as likely as not that the Veteran’s service-connected PTSD and/or diabetes mellitus has caused or made chronically worse the Veteran’s sleep apnea. The clinician should offer separate opinions for PTSD and diabetes mellitus. Also for each of those service-connected disabilities, the physician must address both causation and aggravation. Complete, clearly-stated rationale for the conclusions reached must be provided. The clinician is reminded that merely stating that it is his or her opinion that a condition was not caused or aggravated by a service-connected disability is not sufficient. An explanation is required that takes into account the record and pertinent medical principles and the clinician’s rationale should include citation to pertinent evidence and/or medical principles relied upon to form the opinion. The clinician must also specifically consider and discuss the published literature identified by the Veteran’s representative that suggests an association between PTSD and sleep apnea. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Neilson, 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.