Citation Nr: 21021121 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 12-35 516 DATE: April 9, 2021 REMANDED Entitlement to service connection for human immunodeficiency virus (HIV), to include as secondary to posttraumatic stress disorder (PTSD) with anxiety disorder and major depressive disorder (MDD), is remanded. Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to PTSD with anxiety disorder and MDD, is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1990 to April 1994. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In May 2010, the Veteran submitted a notice of disagreement (NOD) and in September 2012, the RO issued a statement of the case (SOC). In December 2012, the Veteran timely filed a substantive appeal and requested a Board hearing. A hearing was held before the Board in November 2015. A transcript of the hearing is associated with the claims file. In a May 2020 letter, the Veteran was advised that the Veterans Law Judge (VLJ) who conducted the November 201 5hearing was no longer employed by the Board and he had the right to an additional hearing before a different VLJ. 38 U.S.C. §7107(c), 38 C.F.R. §20.707. The letter instructed if the Veteran did not respond within 30 days, the Board would assume that the Veteran does not want another hearing and proceed with a decision on the appellate record. As no response was received, the Board proceeded with adjudication. Most recently, in September 2016 and June 2020 decisions, the Board remanded these issues for additional development. Unfortunately, as discussed below, the Board’s directives have not been substantially completed, and a remand is required.  Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for HIV, to include as secondary to PTSD with anxiety disorder and MDD, is remanded. 2. Entitlement to service connection for OSA to include as secondary to PTSD with anxiety disorder and MDD, is remanded. The Veteran is seeking service connection for HIV and OSA, to include as secondary to his service-connected PTSD with anxiety disorder and MDD. Specifically, he contends that his disabilities are related to service, or in the alternative are proximately due to or aggravated by his service-connected disability. See November 2010 Statement in Support of Claim; March 2010 Statement in Support of Claim. As noted above, in a June 2020 decision, the Board remanded these issues for additional development. Specifically, the Board noted that a September 2016 decision, the Board remanded the issues and requested medical opinions addressing the etiology of the Veteran’s HIV and OSA. Regarding HIV, the September 2016 remand decision had instructed the clinician address the Veteran’s contentions, to include: 1) he self-medicated his PTSD with sexual encounters, 2) an anal fissure removed in 2003 was the result of military sexual trauma (MST) and increased his likelihood of contracting HIV, and/or 3) his post-service sexual encounters were consensual and involved the use of sexual prophylactics, as opposed to the MST that was non-consensual and did not involve prophylactics. Regarding OSA, the September 2016 remand decision instructed the clinician address the Veteran’s contentions that his PTSD caused tobacco use and/or obesity, which caused OSA. On remand a March 2020 VA medical opinion only addressed the Veteran’s contention that he self-medicated his PTSD. The examiner also did not adequately address the aggravation prong of secondary service connection with regard to OSA and asserted that opining on the onset of OSA was beyond his scope of practice. Accordingly, in the June 2020 decision, the Board requested an addendum opinion to address the etiology of the Veteran’s HIV and OSA, to include addressing the Veteran’s contentions. Pursuant to the remand instructions in the June 2020 Board decision, VA opinions were obtained in November 2020. In relevant part, the examiner asserted that he could not provide opinions regarding secondary service connection for HIV or OSA because it was beyond his scope as a general medical provider. Here, the November 2020 examiner clearly stated that he was not competent to address the questions at issue because it was outside the scope of practice of general medicine. As such, a remand is warranted to obtain addendum opinions by a competent examiner. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The matters are REMANDED for the following action: 1. Obtain a VA addendum medical opinion to determine the etiology of the Veteran’s HIV, to include as secondary to PTSD with anxiety and MDD. If an opinion cannot be obtained without an examination, then a VA examination should be afforded to the Veteran. The RO should ensure compliance with the Board’s June 2020 and September 2016 directives by scheduling the Veteran for a medical examination with an appropriately qualified medical professional for an opinion. It may be necessary to obtain opinions from numerous clinicians. The clinician(s)should opine: (a.) Is it at least as likely as not (50 percent or greater probability) the Veteran’s HIV began during service or is related to service, to include as due to an in-service sexual assault (MST). (b.) Is it at least as likely as not the Veteran’s HIV is proximately due to his PTSD? (c.) Is it at least as likely as not the Veteran’s HIV is aggravated beyond its natural progression by his PTSD? The clinician should specifically address the Veteran’s contentions that 1) he self-medicated his PTSD with sexual encounters, 2) an anal fissure removed in 2003 was the result of his MST and increased his likelihood of contracting HIV, and/or 3) his post-service sexual encounters were consensual and involved the use of sexual prophylactics, as opposed to the in-service MST that was non-consensual and did not involve prophylactics. See December 2012 VA Form 9; November 2015 Hearing Testimony. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Obtain a VA addendum medical opinion to determine the etiology of the Veteran’s OSA, to include as secondary to PTSD with anxiety and MDD. If an opinion cannot be obtained without an examination, then a VA examination should be afforded to the Veteran. The RO should ensure compliance with the Board’s June 2020 and September 2016 directives by scheduling the Veteran for a medical examination with an appropriately qualified medical professional for an opinion. It may be necessary to obtain opinions from numerous clinicians. The clinician(s) should opine: (a.) Is it at least as likely as not (50 percent or greater probability) the Veteran’s OSA began during service or is related to service? The clinician should specifically address the Veteran’s testimony that during service he woke up gasping for breath and had difficulty concentrating. See November 2015 Hearing Transcript. (b.) Is it at least as likely as not the Veteran’s OSA is proximately due to his PTSD? (c.) Is it at least as likely as not the Veteran’s OSA is aggravated beyond its natural progression by his PTSD? (d.) Is it at least as likely as not the Veteran’s PTSD caused or aggravated his use of tobacco products after service? (i) If so, is it at least as likely as not the use of tobacco products as a result of PTSD was a substantial factor in causing OSA? (ii) If so, is it at least as likely as not OSA would not have occurred but for the use of tobacco products? (e.) Is it at least as likely as not the Veteran’s PTSD caused or aggravated his obesity? (i) If so, is it at least as likely as not such obesity or aggravation of obesity was a substantial factor in causing OSA? (ii) If so, is it at least as likely as not OSA would not have occurred but for such obesity? If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on the next page)   3. After undertaking any additional development deemed necessary, the AOJ must readjudicate the claims on appeal. If any claim remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and afforded the requisite opportunity to respond before the case is returned to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Kaufer, Associate 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.