Citation Nr: 21030050 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 19-14 291 DATE: May 17, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from July 1954 to July 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in August 2015 by the Department of Veteran Affairs (VA) Regional Office (RO) in Houston, Texas. The case was previously before the Board in June 2020, at which time it was remanded for additional development. For the reasons below, the Board finds that another remand is necessary. Service Connection-Obstructive Sleep Apnea (OSA) In the June 2020 remand, the Board directed that VA medical opinions be obtained to determine the nature and etiology of the Veteran's obstructive sleep apnea, to include whether it is caused or aggravated by the following six service-connected disabilities: arteriosclerotic heart disease, myocardial infarction, and coronary artery bypass grant with atrial fibrillation; diabetic nephropathy and nephrosclerosis with hypertension; left and right lower extremity autonomic neuropathy of the sciatic nerve; left lower extremity peripheral vascular disease, status-post left superficial femoral atherectomy and stent; type II diabetes mellitus; and residual scars status-post coronary artery bypass graft. The Board's remand instructions indicated that the examiner was to review medical opinions provided by the Veteran's private doctors, as well as treatment notes, which purported to show a nexus between obstructive sleep apnea and certain service-connected disabilities. The instructions also noted various internet articles submitted by the Veteran, regarding a link between obstructive sleep apnea and diabetes mellitus, as well as a December 2017 statement by the Veteran. In response to the Board's instructions, in March 2021 a VA examiner completed six separate medical opinions, one for each service-connected disability. However, in each of those opinions, the examiner simply opined that the Veteran's obstructive sleep apnea was less likely as not proximately due to or aggravated by the respective service-connected disability. As rationale, the examiner noted that the Veteran's sleep apnea and the addressed disability were not medically related, that obstructive sleep apnea is a separate entity entirely from the service-connected disability and unrelated to it. The examiner further noted that a thorough review of medical literature failed to demonstrate a relationship in which the requested service-connected disability would or can cause obstructive sleep apnea. Thus, a nexus had not been established between the two. The Board finds that the examiner did not provide a sufficient rationale for the opinions provided, and his conclusions are not supported by sound medical research and/or principles. The Board notes that the language used in each of the six medical opinions was identical, apparently cut-and-pasted between the various opinions. Thus, the Board finds the March 2021 medical opinions wholly inadequate. In addition, the March 2021 VA examination reports are inadequate as the examiner, despite the Board's instructions, did not consider the Veteran's lay statements, the medical articles submitted by the Veteran on the relationship between obstructive sleep apnea and diabetes, nor the opinions of the Veteran's private cardiologist and sleep medicine physician which purported to show a relationship between OSA and the various service-connected disabilities. Therefore, the Board finds that the development conducted does not adequately comply with the June 2020 Board remand directives. Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, an addendum medical opinion regarding the nature and etiology of the Veteran's sleep apnea disability must be obtained. The matters are REMANDED for the following action: Provide the Veteran's claims file to a qualified sleep medicine physician, to provide an addendum medical opinion regarding the nature and etiology of the Veteran's sleep apnea. The claims file must be made available to, and reviewed by, the physician. The need for an additional examination of the Veteran is left to the discretion of the selected physician. If a qualified sleep medicine physician is unavailable, provide the Veteran's claims file to a qualified examiner, other than the one who authored the March 2021 reports, if possible. Based on a review of the record, the physician or examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that the Veteran's sleep apnea was caused or aggravated by each of the following service-connected disabilities: a) arteriosclerotic heart disease, myocardial infarction, and coronary artery bypass grant with atrial fibrillation; b) diabetic nephropathy and nephrosclerosis with hypertension; c) left and right lower extremity autonomic neuropathy of the sciatic nerve; d)left lower extremity peripheral vascular disease, status-post left superficial femoral atherectomy and stent; e) type II diabetes mellitus; and f) residual scars status-post coronary artery bypass graft. The examiner is advised that aggravation is defined as a chronic worsening of the underlying condition, rather than a temporary flare-up of symptoms. Both causation and aggravation must be addressed in each instance. In forming the opinions, the examiner is asked to consider and address each of the following, as appropriate: *August 2014 private treatment record stating a diagnosis of obstructive sleep apnea. VBMS Entry 1/28/2015. *September 2014 DBQ completed by the Veteran's private cardiologist and sleep medicine physician indicating that coronary artery disease status-post coronary artery bypass graft and congestive heart failure were related to his obstructive sleep apnea diagnosis. VBMS Entry 1/28/2015. *April 2016 note from the Veteran's private cardiologist and sleep medicine specialist stating that it was more likely than not that the Veteran's sleep apnea was related to ischemic heart disease and diabetes. VBMS Entry 5/26/2016. *April 2016 DBQ completed by the Veteran's private cardiologist and sleep medicine physician indicating that coronary artery disease, congestive heart failure, coronary artery bypass graft, diabetes, and hypertension were all related to his obstructive sleep apnea diagnosis. VBMS Entry 5/27/2016. *Articles submitted by the Veteran about the connection between obstructive sleep apnea and type II diabetes mellitus. VBMS Entry 12/18/2017. *December 2017 VA Form 9 containing a statement from the Veteran about evidence supporting that his obstructive sleep apnea was caused or aggravated by ischemic heart disease and diabetes. A detailed and medically-supported rationale for all opinions expressed must be provided. JEREMY J. OLSEN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Ivan Franklin 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.