Citation Nr: 21031558 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 08-33 354 DATE: May 24, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected anxiety disorder and posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran, who is the appellant in this case, served on active duty from June 1979 to June 1985. This matter comes before the Board of Veteran's Appeals (Board) on appeal from an August 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2014 and June 2019, the Board remanded this matter for additional development. Unfortunately, another remand is necessary, as there has not been substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998) (finding that a remand by the Board confers on the Veteran the right to compliance with its remand orders). Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected anxiety disorder and PTSD, is remanded. Once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In June 2019, the Board remanded this matter for additional development, to including obtaining new VA medical opinions as to the etiology of the Veteran's obstructive sleep apnea. New VA medical opinions were obtained in February 2021, with clarifying addendum medical opinions obtained in March 2021. However, both the February 2021 and March 2021 medical opinions are inadequate and do not fully address the questions posed by the Board in the June 2019 remand directives; therefore, remand is warranted. See id.; see also Stegall, supra. As to the question of whether it is at least as likely as not that the Veteran's sleep apnea had onset during or is otherwise etiologically related to the Veteran's active duty, the February 2021 opinion is inadequate as it was based solely on the absence of service records and the many year gap between service and diagnosis, without addressing the 1991 treatment note reflecting a complaint of "ongoing tiredness, can sleep 48 hours straight." See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (wherein the Court determined an examination was inadequate because the examiner did not comment on the Veteran's report of in-service injury and, instead, relied on the absence of evidence in his service treatment records to provide a negative opinion); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the veteran's health and medical treatment during and after military service, as evidence of whether a pre-existing condition was aggravated by military service); Barr, 21 Vet. App. 303 (holding that a lay person is competent to identify the presence of disability or symptoms of disability subject to lay observation). In the March 2021 addendum medical opinion, the VA examiner opined that the Veteran's sleep apnea was less likely than not related to service because "[o]bserved/reported snoring, unrestful sleep, 'gasping', 'trouble sleeping', fatigue, shallow breathing and/or insomnia, are not pathognonomic for sleep apnea as there are a plethora of other possible etiologies for those symptoms." Such an opinion is conclusory and inadequate, as it did not explain why the Veteran's obstructive sleep apnea was less likely than not the cause of the perceived symptoms rather than the "plethora of other possible etiologies for those symptoms." As to the question of whether it is at least as likely as not that the Veteran's anxiety disorder and PTSD caused the Veteran to become obese, including as a result of his self-medication of his symptoms, the February 2021 opinion relied on an absence of evidence that the Veteran self-medicated. Such reliance solely on the absence of evidence renders the opinion inadequate. See Dalton, supra. The March 2021 clarification opinion stated "[o]besity is caused by a combination of excessive food intake and lack of physical activity, neither of which can be said to be attributed to PTSD as food intake and physical activity is a choice." Such an opinion is conclusory and does not address the Veteran's claims of feeling compelled to self-medicate due to his anxiety and PTSD which in turn led to overeating. Therefore, the March 2021 addendum medical opinion is inadequate. For these reasons, the Board finds that a remand is warranted to obtain new etiology opinions. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician addressing the etiology of the Veteran's obstructive sleep apnea. No additional examination is needed unless the examiner determines otherwise. The claims file should be made available to and reviewed by the clinician. The clinician is requested to respond to the following: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's obstructive sleep apnea: 1. Had its onset during or is otherwise etiologically related to the Veteran's active duty service? 2. Is proximately due to or caused by his anxiety disorder and PTSD? 3. Has been aggravated (worsened beyond natural progression) by his anxiety disorder and PTSD? (b.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's anxiety disorder and PTSD caused the Veteran to become obese, including as a result of his self-medication of his symptoms? 1. If so, considering that obesity was a substantial factor in causing obstructive sleep apnea, is it at least as likely as not that obstructive sleep apnea would not have occurred but for his obesity? In addressing question (a)(2) and (a)(3), please note that the primary disability (anxiety disorder and PTSD) need not be diagnosed at the time the secondary disability (obstructive sleep apnea) is incurred, and reliance on this fact in support of a negative opinion will render it inadequate. In making these opinions, the examiner's attention is called to the following evidence: **The July 1990 medical record indicating that the Veteran did some night work, was usually in bed by midnight, and usually woke up tired. **The October 1991 treatment note showing the Veteran's complaint of "ongoing tiredness, can sleep 48 hours straight." **The May 1992 treatment record indicating that the Veteran was very tired and trying to lose some weight. **The February 1994 treatment record indicating that the Veteran thinks he has sleep apnea as he wakes up tired, and was diagnosed with hypothyroidism. **The October 1994 psychiatric evaluation indicating that the Veteran was always tired and reported having gained too much weight. **The 1995 treatment note showing that the Veteran had depression and anxiety with fatigue and smoked cannabis for nausea and was gaining weight. **The March 1995 psychiatric evaluation indicating ath the Veteran still reported considerable fatigue setting in by the afternoon, despite treatment of hypothyroidism that had helped decrease his somnolence. All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records. If the clinician is unable to provide an opinion on these matters, the clinician must state whether the inability to render an opinion is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the clinician (does not have the knowledge or training). 2. Then, readjudicate the issue on appeal. Megan R. Thomas Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lee Feldman, 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.