Citation Nr: 21029411 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 16-57 001 DATE: May 13, 2021 REMANDED Entitlement to service connection for sleep apnea, to include on a secondary basis, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1988 to April 1992, to include service in Southwest Asia. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2018, November 2018 and October 2020 the Board remanded the matter to the Agency of Original Jurisdiction (AOJ) for additional development, and it has now returned for appellate review. The Veteran's claim must be remanded for additional development. A remand by the Board confers on the claimant, as a matter of law, a right to compliance with the remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Once VA undertakes the effort to provide an examination when developing a claim, the exam must be an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Pursuant to the October 2020 Board remand, the Veteran was afforded a VA examination to address his sleep apnea claim in November 2020. As discussed further below, the Board finds that the November 2020 VA examination is inadequate. Therefore, the Board finds that its remand directive has not been substantially complied with. In the October 2020 remand the Board requested that the examiner answer whether the Veteran's posttraumatic stress disorder (PTSD), or his medications taken for his PTSD, caused him to become obese. The Board further requested the examiner answer whether the Veteran's PTSD aggravated his current obesity. The Veteran's attorney, in an April 2021 correspondence, indicated that the November 2020 examiner's opinion was inadequate and therefore nonprobative, as it was internally inconsistent and failed to consider whether the Veteran's PTSD led to increased caloric intake. Specifically, the attorney noted that the examiner only commented on whether the Veteran's PTSD aggravated the Veteran's development of obesity, as opposed to aggravate his current obesity. Furthermore, the attorney noted that the examiner stated multiple times that the Veteran's obesity was caused by caloric intake and not by the Veteran's PTSD, but failed to opine as to whether the Veteran's caloric intake could have been caused or aggravated by the Veteran's PTSD. The attorney made reference to the Veteran's wife's 2018 statement to the VA examiner that the Veteran's PTSD caused him major eating problems, and that he was a very healthy eater prior to his diagnosis of PTSD. See 2018 VA examination report. Finally, the attorney asserted that no opinion exists on whether the Veteran's PTSD has directly been caused or aggravated by his obstructive sleep apnea (OSA), without considering the intermittent step of obesity. The attorney also referenced two articles previously submitted, which indicated that PTSD sleep disorders are risk factors for OSA. The matter is REMANDED for the following action: 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 (i.e., probability of 50 percent or higher) that obstructive sleep apnea is proximately due to or the result of (caused by) the Veteran's PTSD or PTSD medications? Please explain why or why not. (b) Is it at least as likely as not that obstructive sleep apnea is aggravated by the Veteran's PTSD or PTSD medications? Note that permanent aggravation is NOT a requirement. Please explain why or why not. (c) Is it at least as likely as not that the Veteran's PTSD or PTSD medications, caused him to become obese, to include whether the Veteran's PTSD caused him to have unhealthy eating habits or increased caloric intake? (Continued on the next page) (d) If the answer to (c) is "no," does/did the Veteran's PTSD or PTSD medications, aggravate his obesity condition? Note that permanent aggravation is NOT a requirement. Please explain why or why not. Clear rationales for the opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. However, if a requested opinion(s) cannot be provided without resorting to speculation, the examiner should so state and explain why an opinion cannot be provided without resorting to speculation. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Nadia Kamal, 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.