Citation Nr: 21010536 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 14-38 504A DATE: February 25, 2021 REMANDED The claim of entitlement to service connection for a sleep disorder, to include obstructive sleep apnea (OSA), is remanded. REASONS FOR REMAND The Veteran had active service from March 1969 to September 1972. This matter comes before the Board of Veterans’ Appeals (Board) from an August 2012 rating decision by the Agency of Original Jurisdiction (AOJ). The Board denied the instant claim in April 2018. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court). In a September 2019 Memorandum Decision, the Court vacated the Board’s decision and remanded the appeal for proceedings consistent with its decision. In April 2020, the Board remanded the appeal for development of the record. It directed that an examination be conducted to determine the nature and etiology of any diagnosed sleep disorder. In June 2020, a VA examiner diagnosed sleep apnea and concluded that it was not related to service or the Veteran’s service-connected posttraumatic stress disorder (PTSD). In August 2020, a VA physician reviewed the record and concluded that sleep apnea was not related to the Veteran’s PTSD. In November 2020, the Board determined that the medical opinion obtained on remand was not adequate. It pointed out that the VA examiner based his conclusions, in part on an absence of medical literature to support a finding that PTSD caused or aggravated sleep apnea. It additionally noted that the VA examiner stated that the Veteran’s weight was one of his risk factors for the development of sleep apnea. The Board indicated that in September 2020, the Veteran’s attorney had submitted medical literature supporting a connection between sleep apnea and PTSD, as well as weight gain and PTSD. The Board directed that an addendum opinion be obtained from a VA examiner. On remand, the August 2020 VA examiner again reviewed the record. He essentially dismissed the medical treatise evidence submitted by the Veteran, noting that there was a difference between an association and a causal relationship. He attributed the Veteran’s obesity to overeating and not to PTSD or medications used to treat it. He again pointed out that the Veteran’s being overweight was a risk factor for obstructive sleep apnea, but that the cause of obstructive sleep apnea was “the airway being sucked closed in inspiration during sleep.” The Board finds that this VA examiner’s conclusive statements as to the direct cause of apneas and hypopneas during sleep do not adequately address the question of whether there is a relationship between the Veteran’s PTSD and his sleep apnea, to include whether his PTSD has contributed to his being overweight. Considering the above discussion, the Board has determined that an additional medical opinion is necessary. The matter is REMANDED for the following action: 1. Obtain an opinion from a qualified clinician, who has not previously examined the Veteran or provided an opinion with respect to the Veteran’s OSA, regarding the nature and etiology of the Veteran’s OSA. The entire record, including a copy of this remand, must be made available to and reviewed by the reviewing clinician. If the reviewing clinician determines that physical examination of the Veteran is required to answer the question(s) below, such should be accomplished. The reviewing clinician is asked to review the entire record, including the journal articles submitted by the Veteran’s attorney. After the record review and examination of the Veteran, if deemed necessary, the reviewing clinician should provide an opinion regarding the whether it is at least as likely as not that the Veteran’s OSA was caused or aggravated (worsened beyond normal progression) by the Veteran’s service-connected PTSD, to include medications used to treat the same. The reviewing clinician must also provide an opinion regarding whether it is at least as likely as not that the Veteran’s post-service weight gain was at least in part due to a service-connected disability, to include PTSD or medications used to treat the same. If so, the reviewing clinician should provide an opinion regarding the whether it is at least as likely as not that the Veteran’s post-service weight gain caused or aggravated his OSA. In rendering these opinions, the reviewing clinician must consider the medical literature submitted by the Veteran’s representative. The reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The reviewing clinician is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 2. Then, readjudicate the Veteran’s claim, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC) and afforded an appropriate period within which to respond thereto. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Barone, 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.