Citation Nr: 21023126 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-11 107 DATE: April 20, 2021 REMANDED Entitlement to service connection for sleep apnea, claimed as secondary to service-connected major depressive disorder and posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1990 to July 1994. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in January 2014 by a Department of Veterans Affairs (VA) Regional Office. In an October 2018 decision, the Board denied service connection for sleep apnea. The Veteran appealed such denial to the United States Court of Appeals for Veterans Claims (Court), which, in a January 2020 Memorandum Decision, vacated and remanded the October 2018 Board decision. In August 2020, the Board remanded the case for additional development and it now returns for further appellate review. Entitlement to service connection for sleep apnea, claimed as secondary to service-connected major depressive disorder and PTSD. As the Court determined that the March 2016 VA opinion upon which the Board relied in denying the Veteran’s claim for service connection for sleep apnea in the October 2018 decision was inadequate, the Board remanded the case in August 2020 in order to obtain an addendum opinion addressing the etiology of such disorder. Specifically, at such time, the Board requested an addendum opinion addressing whether the Veteran’s sleep apnea was caused or aggravated by his service-connected psychiatric disability (major depressive disorder and PTSD) be obtained. In offering such opinion, the examiner was directed to address a July 2015 private opinion by Dr. J.H. that the Veteran’s PTSD might worsen his sleep apnea symptoms, the March 2016 VA examiner’s opinion that it was less likely than not that the Veteran’s sleep apnea was due to or permanently worsened by his service-connected psychiatric disability, and all relevant medical literature. In February 2021, the Veteran underwent a VA examination and an addendum opinion was provided. At such time, the examiner opined that it was less likely than not that his sleep apnea was proximately due to or the result of his service-connected PTSD with major depressive disorder. In support thereof, he reported that there were a number of studies that recorded a high prevalence of obstructive sleep apnea in patients with PTSD and other mental health disorders; however, prevalence did not equate to causation, and the studies did not conclude that PTSD caused obstructive sleep apnea. The examiner also reported that the article (likely referring to the medical literature submitted by the Veteran in July 2015) included a chart review study that showed increased prevalence of obstructive sleep apnea in various mental health disorders; however, it did not prove that these mental health disorders caused obstructive sleep apnea. Further, he indicated that there was documentation of a sleep study in January 2013 with a diagnosis of obstructive sleep apnea, but there was no sleep study prior to the onset of symposium of PTSD in service. Thus, the examiner concluded that she could not say without speculation whether there was aggravation of sleep apnea due to PTSD. Upon review, the Board finds that the addendum opinion obtained in February 2021 to be inadequate to decide the claim. Specifically, in rendering an unfavorable opinion in regard to whether the Veteran’s service-connected major depressive disorder and PTSD aggravated his sleep apnea, the examiner did not address Dr. J.H.’s July 2015 private opinion or the March 2016 VA examiner’s opinion as directed in the August 2020 Remand. Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Further, the examiner’s conclusion as to whether the Veteran’s service-connected PTSD aggravated his sleep apnea was admittedly inconclusive as he indicated that such determination could not be reached without resort to speculation. Consequently, the Board cannot rely upon such opinion in adjudicating the Veteran’s claim. Thus, the Board finds that a remand is necessary in order to obtain another addendum opinion that addresses such matters. The matter is REMANDED for the following action: Forward the record, to include a copy of this Remand, to an appropriate VA examiner, other than the clinician who offered the February 2021 opinion, if possible, for an addendum opinion addressing the etiology of the Veteran’s sleep apnea. Following a full review of the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent of greater probability) that the Veteran’s sleep apnea is caused or aggravated by his service-connected major depressive disorder and PTSD. For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. In offering such opinion, the examiner must address Dr. J.H.’s July 2015 private opinion that the Veteran’s PTSD might worsen his sleep apnea symptoms, the March 2016 VA examiner’s opinion that it was less likely than not that the Veteran’s sleep apnea was due to or permanently worsened by his service-connected psychiatric disability, and all pertinent medical literature pertaining to the relationship between sleep apnea and depressive disorder/PTSD, to include such submitted by the Veteran in July 2015. A rationale for any opinion offered should be provided. If the examiner cannot provide an opinion without resorting to mere speculation, s/he must make clear that s/he has considered all procurable data, but any member of the medical community at large could not provide such an opinion without resorting to speculation. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Koria B. Stanton, 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.