Citation Nr: 21030031 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 16-38 951 DATE: May 17, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from December 2001 to July 2002, May 2005 to October 2005, June 2007 to September 2007, and December 2007 to July 2010, with additional Reserve service. The Veteran is a Persian Gulf War Veteran. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board initially remanded the claim in November 2018 to obtain, among other things, a VA medical examination and medical opinion. The claim was remanded again in a January 2020 Board decision to obtain an addendum medical opinion. Entitlement to service connection for OSA is remanded. The Veteran contends that his OSA is secondary to his service-connected traumatic brain injury (TBI) and asthma. See Form 9 (August 2016). He alternatively claims that it is related to exposure to environmental hazards in the Gulf War. See VA Form 526-EZ (May 2016). Unfortunately, there has not been substantial compliance with the Board's previous remand directives and another remand is required. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Initially, the Board notes that, while the Veteran served in the Persian Gulf and has generally asserted that his OSA is due to his service there, if signs or symptoms have been medically attributed to a diagnosed rather than undiagnosed illness, as is the case here, the Persian Gulf War presumption of service connection does not apply. 38 C.F.R. § 3.317; VAOPGCPREC 8-98 (August 3, 1998); 63 Fed. Reg. 56,703 (1998). Pursuant to the Board's most recent remand, a VA medical opinion (VAMO) was obtained in March 2020. The Board finds the March 2020 VAMO inadequate to adjudicate the claim. Here, the rationales are not discernible on the matters of direct and secondary service connection, nor with respect to obesity as an intermediate cause of the Veteran's OSA. Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). The opinions are essentially based on a general finding that there is a lack of objective evidence to support the various theories of service connection advanced in the instant appeal. In addition, the medical opinions contain minimal to no reference to the specific facts of the Veteran's case and are not supported by any medical analysis to assist the Board in making a well-informed decision. Lastly, the bulk of the rationales are comprised of the same internet article from the Mayo Clinic discussing the causes and risk factors of obesity without any additional explanation as to why the article is relevant to the particular facts in this case. It is noted that a medical opinion or "medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). As to direct service connection, the VAMO contains a negative medical opinion on whether OSA had its onset in or was otherwise related to service, to include conceded environmental exposures and notations of sleep disturbances therein. The supporting rationale stated there is no objective evidence that the Veteran had OSA during service because a sleep study, which is the only method to confirm and diagnose OSA, was not performed during service. In addition, the Veteran separated in 2010 and was not diagnosed with OSA until years later, which reflects a large gap in care. The opinion further states "There was no objective evidence found to confirm that OSA was incurred or caused by environmental exposures and notations of sleep disturbances therein. The causes of obesity are multifactorial." The medical opinion contains no rationale for its conclusion other than citing to the Mayo Clinic internet article discussing obesity. The Board finds the opinion above is inadequate because it is predicated on the absence of an in-service sleep study accompanied by a gap in medical treatment between the Veteran's service separation in 2010 and the June 2014 sleep study that confirmed a diagnosis of OSA. It does not reflect consideration of the Veteran's lay assertions. See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) ("the VA examiner's failure to consider [a veteran's] testimony when formulating her opinion renders that opinion inadequate"). In this instance, the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology such as onset of symptoms such as fatigue and sleep disturbances. Moreover, on the matter of direct causation of OSA due to environmental hazards, there is no rationale provided for the conclusion. If there is a medical basis to support or doubt the history provided by the Veteran, the clinician should provide a fully reasoned explanation. Given that the VA medical opinion does not address the Veteran's lay statements, nor does it provide a sufficient rationale as to direct causation, the Board finds that it is inadequate to decide the claim. Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). As to the theory of secondary service connection, the VAMO concludes that OSA is less likely than not proximately due to or the result of the Veteran's service-connected disabilities. The supporting rationale for the conclusion reached is that there was no objective evidence found to confirm that OSA was caused by the Veteran's service-connected disabilities, including residuals of TBI, asthma, migraines, tinnitus, high blood pressure and anxiety disorder. The opinion also states that the Veteran's service-connected disabilities did not cause him to become obese/gain weight. The opinion also states there is no objective evidence that the Veteran's OSA was aggravated by service-connected anxiety but does not address whether any other service-connected disabilities aggravated the Veteran's OSA. Lastly, the medical opinion states "it is unlikely that the Veteran' service-connected diagnoses caused the Veteran to become obese. In addition, it is possible that the OSA would have occurred without the obesity and there is no objective evidence to confirm that obesity/weight gain was a substantial factor in causing OSA." The Board finds the medical opinion inadequate for a number of reasons. Although the opinion largely relies on the Mayo Clinic article on obesity to support its conclusions, there is no indication how the causes and risk factors cited in the article are applicable to the Veteran's specific facts. See Bailey v. O'Rourke, 30 Vet. App. 54, 60 (2018) (an opinion is inadequate when based solely on general articles without a meaningful discussion of the facts pertaining to a veteran's condition or individual circumstances); see also Libertine v. Brown, 9 Vet. App. 521, 523 (1996) (noting that an excerpt from a generic medical text that doesn't apply medical principles regarding causation or etiology to the facts of the individual veteran's case generally won't provide sufficient evidence, standing alone, to serve as the basis for an award of service connection). In addition, the Board notes that while the medical opinions, when read as a whole, appear to suggest the Veteran's obesity is the primary cause of his OSA, the examiner also notes there is no objective evidence to confirm that obesity/weight gain was a substantial factor in causing the Veteran's OSA. The examiner additionally raises the possibility that the Veteran's OSA had other etiological causes other than obesity, but, provides no clarification as to what those etiological causes likely were. Aside from the internal contradictions in the examiner's statements, the Board finds that the opinions are inadequate because they are not supported by reasoned rationales or medical explanations connecting findings to the conclusions. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("a medical opinion...must support its conclusion with analysis that the Board can consider and weigh against contrary opinions"). Given the above deficiencies and the Board's duty to ensure compliance with the terms of its prior remand, an additional medical opinion is required. Stegall, 11 Vet. App. 268. In remanding this matter, the Board makes no further finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician, other than the one who provided the March 2020 medical opinion, regarding the etiology of the Veteran's OSA. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record, and interview of the Veteran, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptom consistent with OSA. The clinician is not required to accept the Veteran's theory regarding causation of his OSA, or that he had symptoms associated with OSA during or following military service if this is incongruous with the record; however, the clinician is required to fully explain why he or she disagrees with the Veteran's theory of causation, and provide a discussion of the relevant or significant medical history, clinical findings, medical knowledge or literature, etc., that support the negative medical opinion or conclusions. If another etiology is the more likely cause, the clinician must provide a complete explanation of his or her reasoning. The clinician must opine on: Direct Service Connection (a) Whether the Veteran's OSA at least as likely as not (1) began during active service or (2) is related to an in-service injury, event, or disease. Secondary Service Connection (b) Whether the Veteran's OSA is at least as likely as not (1) proximately due to service-connected disabilities, including TBI and/or asthma, or (2) aggravated beyond its natural progression by service-connected disabilities, including TBI and/or asthma. Provide a rationale that deals with causation and aggravation as independent concepts. Explain. Indirect Secondary Service Connection Obesity as an "Intermediate Step" (c) Is it at least as likely as not that the Veteran's service-connected disabilities, including TBI and/or asthma, (1) caused or (2) aggravated the Veteran's obesity? Provide a rationale that deals with causation and aggravation as independent concepts. (d) If so, was the resulting obesity a substantial factor in causing the Veteran's OSA? Explain. (e) If yes, but for the Veteran's obesity, would the Veteran have developed OSA? Explain. NOTE (1): An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. NOTE (2): An adequate medical opinion may not be predicated solely on the absence of literature supporting causation or aggravation without discussing those facts specific to this Veteran. 2. Ensure that the VA medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Krunic, 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.