Citation Nr: 21014589 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 17-35 124 DATE: March 15, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea, to include secondary to service-connected posttraumatic stress disorder is remanded. Entitlement to service connection for left lower extremity restless leg syndrome is remanded. Entitlement to service connection for right lower extremity restless leg syndrome is remanded. Entitlement to service connection for asthma is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 2011 to February 2015. In September 2019 the Board issued a decision denying the claims of entitlement to service connection for asthma and restless leg syndrome of the bilateral lower extremities. The Veteran appealed that decision to the Court of Appeals of Veterans Claims (Court) and in Joint Motion Remand (JMR) dated September 2020, the Court set aside the Board’s denial and remanded the issue for further development and readjudication. 1. Entitlement to service connection for obstructive sleep apnea, to include secondary to service-connected posttraumatic stress disorder The Veteran contends entitlement to service connection for obstructive sleep apnea on a direct and secondary basis. In February 2016 the VA examiner provided a negative nexus opinion for direct service connection citing no evidence of diagnosis or treatment for sleep apnea in-service. The examiner listed risk factors pointing out that obesity is the best documented risk factor and noting that obstructive sleep apnea is increased by abnormalities of the soft tissue. In January 2020 the VA examiner provided a negative nexus opinion for secondary service connection. The examiner stated that obstructive sleep apnea is an obstruction of the upper airways and while untreated sleep apnea may worsen PTSD and some treatments for PTSD may temporarily worsen untreated sleep apnea, there is no nexus found in medical literature that PTSD causes the anatomical condition responsible for obstructive sleep apnea. The Board finds a remand is necessary for addendum opinions for both direct and secondary service connection as neither provided an adequate rationale and there is additional evidence supporting direct service connection. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). 2. Entitlement to service connection for bilateral lower extremity restless leg syndrome The JMR concluded that the Board failed to comply with its duty to assist to provide an adequate medical opinion addressing bilateral restless leg syndrome. Specifically, the JMR noted that the examiner failed to provide a clear rationale and did not address the medical article regarding restless leg syndrome and toxic neuropathy or the medical treatment notes indicating a diagnosis of restless leg syndrome and related symptoms. Id. 3. Entitlement to service connection for asthma Again, the JMR determined that Board failed to comply with its duty to assist as the opinion of record did not include a clear and adequate rationale. The examiner failed to adequately discuss asthma in relation to burn pits and based the negative opinion on the lack of service treatment records relating to asthma. See Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015) (indicating that a VA examiner may not generally rely on the absence of evidence as negative evidence). The matters are REMANDED for the following action: 1. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file. If, after making reasonable efforts, the records cannot be obtained, notify the Veteran and his representative and (a) identify the specific records that cannot be obtained; (b) briefly explain the efforts made to obtain those records; and (c) describe any further action to be taken with respect to the claim. The Veteran must then be given an opportunity to respond. 3. After completing the above development, obtain an addendum medical opinion from a medical professional with appropriate expertise. The examiner should review the Veteran’s claims file. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one. Based on a review of the record, and a new examination if necessary, the examiner must address the following: (a.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s sleep apnea is related to active service or is caused by or aggravated by military service, to include due to exposure to burn pits. (b.) Is it at least as likely as not (i.e., probability of 50 percent or higher) that sleep apnea is proximately due to or the result of the Veteran’s PTSD? (b.) If the answer to (a) is negative, is it at least as likely as not that the sleep apnea is aggravated (i.e., permanently or temporarily worsened) by PTSD? (c.) If aggravation is found, the examiner should address the following medical issues: 1) the baseline manifestations of the disorder found prior to aggravation; and 2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disorder. The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. The examiner should consider and discuss the buddy statements of record reporting in-service snoring and breathing issues. In all opinions rendered, the examiner is advised that the Veteran is competent to report his symptoms and treatment history. If there is a medical basis to doubt the history provided the examiner should provide a fully reasoned explanation. A complete rationale containing clear conclusions with supporting data and a reasoned medical explanation connecting the two is required for all medical opinions. The examiner should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall 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(s). 4. Obtain an addendum medical opinion from a medical professional with appropriate expertise. The examiner should review the Veteran’s claims file. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one. Based on a review of the record, and a new examination if necessary, the examiner must address the following: (a.) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s restless leg syndrome of the right and/or left lower extremity is related to his active service or is caused by or aggravated by military service, to include due to jet fuel exposure and/or environmental exposures. The examiner must consider and address the following: 1) the medical article Toxic Neuropathy Clinical Presentation See Medical Treatment Record Non-Government Facility March 2017; 2) the October 2015 sleep study and physician’s report noting likely restless leg syndrome; and 3) the Veteran’s reported difficulty falling and staying asleep due to his leg movements. The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. In all opinions rendered, the examiner is advised that the Veteran is competent to report his symptoms and treatment history. If there is a medical basis to support or doubt the history provided, the examiner should provide a fully reasoned explanation. A complete rationale containing clear conclusions with supporting data and a reasoned medical explanation connecting the two is required for all medical opinions. The examiner should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall 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(s). 5. Obtain an addendum medical opinion from a medical professional with appropriate expertise. The examiner should review the Veteran’s claims file. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one. Based on a review of the record, and a new examination if necessary, the examiner must address the following: (a.) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s asthma is related to his active service or is caused by or aggravated by military service, to include due to exposure to burn pits. The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. In all opinions rendered, the examiner is advised that the Veteran is competent to report his symptoms and treatment history. If there is a medical basis to support or doubt the history provided, the examiner should provide a fully reasoned explanation. A complete rationale containing clear conclusions with supporting data and a reasoned medical explanation connecting the two is required for all medical opinions. The examiner should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall 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(s). 6. Finally, readjudicate the appeal. If the benefits sought on appeal remain denied, issue a supplemental statement of the case and return the case to the Board. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. A. Prinsen 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.