Citation Nr: 21010782 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 16-62 649 DATE: February 25, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. INTRODUCTION The Veteran served on active duty from December 1990 to March 1991, January 2003 to February 2004, December 2008 to December 2009, August 2016 to August 2019, and April 2020 to June 2020. In November 2019, the Veteran attended a hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. When this case was previously before the Board in December 2019 and June 2020, the above-noted claim was remanded for additional development. The case has since been returned for further appellate review. REASONS FOR REMAND The Board finds further development is yet again required before the Veteran’s claim is decided. As the Board has previously stated, a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Though the above-noted claim has previously been remanded twice in order to obtain adequate VA medical opinions, to date, substantial compliance with the prior Board instructions has not been achieved. As such, a remand is required. When this case was previously before the Board, the RO was specifically instructed to obtain a comprehensive medical opinion addressing the Veteran’s assertions that his sleep apnea was consequentially related to his service-connected PTSD. The examiner was particularly asked to consider and discuss the medical journal articles submitted by the Veteran, which purport to establish a link between PTSD and sleep apnea. As previously noted, these articles suggest an increase in body mass index (BMI) has been shown to be associated with the onset of obstructive sleep apnea and may be caused by psychiatric disorders. By way of a recent precedential opinion, VA General Counsel indicated that although weight gain itself is not a disability, it may act as an “intermediate step” between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310 (a). See VAOPGCPREC 1-2017. The Veteran underwent another VA examination in August 2020, at which time the examiner again rendered a diagnosis of obstructive sleep apnea. Following his examination, the examiner concluded the Veteran’s current sleep apnea was less likely than not incurred in service, proximately due to or aggravated by his service-connected PTSD, or aggravated by his subsequent period of active duty service. In support of these conclusions the examiner initially found no evidence in the Veteran’s medical records to indicate his condition was incurred in or aggravated during his active duty service. With respect to the Veteran’s theory of secondary causation, the examiner cited to a May 2015 medical journal article, which did indicate veterans with PTSD screen as high risk for OSA. However, the examiner found this merely represents an association, not a temporal relationship between OSA and PTSD. Unfortunately, the examiner both wholly ignored the three medical journal articles provided by the Veteran, and also failed to discuss whether an intermediate or indirect relationship may exist between the Veteran’s PTSD and his OSA, by way of either BMI increase or medications taken for PTSD as directed. For these reasons, the Board finds substantial compliance with the prior remand directives has yet to be achieved, and a new medical opinion must be obtained. Accordingly, this case is REMANDED for the following actions: 1. Obtain a records review and medical opinion from a VA Pulmonologist who specializes in sleep apnea syndromes. All pertinent evidence of record must be made available to and reviewed by the examiner. Another examination of the Veteran must be performed only if deemed necessary by the examiner providing the opinion. Following a review of the relevant records and lay statements, the physician is asked to state an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s sleep apnea: a) originated during his periods of active service or is otherwise etiologically related to his active service; b) was worsened during his August 2016 to August 2019 or April 2020 to June 2020 periods of active duty; c) was caused by his service-connected PTSD, to include any medication he takes for his PTSD or BMI increase that may have been caused by his PTSD; or d) was worsened to any degree by his service-connected PTSD, to include any medication he takes for his PTSD or BMI increase that may have been caused by his PTSD. The examiner must provide a complete rationale for all proffered opinions. The examiner must discuss and consider the Veteran’s competent lay statements, as well as the medical journal articles provided by the Veteran. In particular, the examiner should note these articles suggest an increase in body mass index (BMI) has been shown to be associated with the onset of obstructive sleep apnea, and may be caused by psychiatric disorders. The examiner should also be mindful that by way of a recent precedential opinion, VA General Counsel indicated that although weight gain itself is not a disability, it may act as an “intermediate step” between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310 (a). See VAOPGCPREC 1-2017. (Continued on the next page)   If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Fraser, 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.