Citation Nr: 21030116 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 13-20 486 DATE: May 17, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) as secondary to service-connected post-traumatic stress disorder (PTSD) is remanded. Introduction The Veteran served honorably on active duty in the United States Army during the Vietnam Era, from July 1966 to July 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 Rating Decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Veteran appeared and testified before the undersigned Veterans Law Judge (VLJ) at a hearing held in December 2016. A transcript of the hearing is of record. In June 2018, the United States Court of Appeals for Veterans Claims (Court) issued an Order remanding the matter pursuant to an agreed upon Joint Motion for Remand (JMR). The Board subsequently remanded the matter pursuant to the terms of the JMR in January 2019. When this matter came before the Board most recently in February 2021, it was remanded for additional development. The additional development has been conducted, and the matter returns to the Board for further appellate review. While further delay is regrettable, for the reasons set forth below, the Board finds remand is again required to ensure substantial compliance with the Board's prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Finally, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)2). REASONS FOR REMAND Entitlement to service connection for OSA as secondary to service-connected PTSD is remanded. Pursuant to the Board's most recent remand, the Veteran underwent a VA examination in March 2021 regarding this claim. For the reasons set forth below, the Board finds the VA examiner's opinions are inadequate for purposes of determining service connection and do not substantially comply with the prior remand directives. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall, 11 Vet. App. at 271. First, contrary to the Board's remand directives, the VA examiner failed to consider and discuss as necessary the numerous articles submitted by the Veteran regarding a relationship between PTSD and OSA. Moreover, the VA examiner failed to support his negative nexus opinions with fully-articulated rationales based upon medical principles, supporting data, and sound reasoning in relation to the pertinent lay and medical evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Indeed, none of the VA examiner's opinions consist of more than a single, conclusory sentence. Regarding direct service connection, the VA examiner improperly relied exclusively upon a lack of "complaints or treatments while in service" to support his negative nexus opinion. Also, without adequate explanation, the VA examiner summarily concluded the "medical evidence is not sufficient to support a determination of baseline level of severity" for purposes of determining aggravation. Additionally, the VA examiner failed to obtain and report a full history of the Veteran's sleep issues. The examiner summarily noted the Veteran's date of onset was "1968" as the Veteran reported having "sleep issues since 1968," including current symptoms of "daytime fatigue." While the nature of these reported "sleep issues" is not explained, the VA examiner did not reconcile this statement with his negative nexus opinions and, instead, effectively ignored it altogether. The VA examiner also did not address any of the Veteran's treatment records reporting a history of sleep disturbances. For example, the examiner did not address VA treatment notes dated May 2007 referencing long-standing "sleep disturbance or insomnia," January 2008 noting poor sleep with initial and middle insomnia likely due to hypervigilance and nightmares respectively, August 2009 referencing a "[h]istory of snoring/sleep apnea," and January 2011 noting "mood/anxiety/sleep problems since late 60's." Finally, without explanation or rationale, the VA examiner checked a box indicating no functional impact due to the Veteran's OSA. However, the VA examiner's finding ignores medical evidence of record, including a VA treatment note dated December 2012 reporting "problems with ... [OSA]," and an April 2020 VA treatment note indicating the Veteran "reported trouble sleeping, having difficulty falling asleep, staying asleep, and takes 'a few several hour naps' during the day." Accordingly, the matter is REMANDED for the following actions: Schedule the Veteran for a VA examination with a physician who has not previously rendered an opinion in this matter and possessing the necessary expertise to fully assess and provide an opinion regarding the nature, severity, and likely etiology of the Veteran's OSA including, but not limited to, as secondary to service-connected PTSD. **If an in-person VA examination is not feasible, alternative means of conducting the examination must be employed, such as via telehealth examination with a complete records review. The examiner must obtain a full history from the Veteran. It should be noted the Veteran is competent to attest to factual matters of which he has first-hand knowledge, such as in-service events and observable pre- and post-discharge symptomology and functional limitations. All pertinent OSA symptomology, including when initially manifested and any progression, must be reported in detail. Any indicated studies must be performed. Based upon a review of all pertinent documents in the Veteran's claims file including medical treatment and examination records, lay statements, and the examination results, the examiner must offer an opinion based upon an accurate medical history with clear conclusions and supporting data as to the following: (a.) Whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's diagnosed OSA is due to, related to, or otherwise etiologically associated with his active duty service. (b.) Whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's diagnosed OSA is proximately due to, related to, or otherwise etiologically associated with or aggravated by a service-connected condition including, but not limited to, PTSD. In offering the above opinions, the examiner must consider and discuss as necessary all pertinent lay and medical evidence of record including, but not limited to: (a.) May 2006 statement by Ms. J.A.E., the Veteran's ex-wife, regarding observed sleep issues; (b.) May 2006 statement by the Veteran regarding sleep difficulty; (c.) May 2006 VA treatment note referencing "many PTSD [symptoms] including severe sleep disturbance;" (d.) the Veteran's NOD dated January 2014 regarding secondary causation; (e.) the Veteran's December 2016 hearing testimony; (f.) medical article "High risk of sleep apnea in young veterans with PTSD" in Science Daily submitted December 2016, and various articles submitted October 2018; and (g.) VA treatment records dated May 2007, January 2008, August 2009, January 2011, December 2012, and April 2020 regarding sleep disturbances, including reportedly "since late 60's." A complete and thorough rationale for all opinions expressed, with references to pertinent evidence of record, must be provided. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Worsham, Attorney Advisor 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.