Citation Nr: 21041126 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 18-27 478 DATE: July 8, 2021 REMANDED The claim for service connection for obstructive sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 1975 until his honorable discharge in June 1979. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 decision by the Atlanta, Georgia, Regional Office of the United States Department of Veterans Affairs (VA). In February 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). In March 2020, the Board remanded the case to the VA Regional Office for further development. Specifically, the Board directed the VA Regional Office to obtain a VA examination addressing the etiology of the Veteran's sleep apnea, to include medical opinions addressing direct and secondary service connection. The VA Regional Office obtained the examination and medical opinions in June 2020 from a contracted examiner. The case now returns to the Board. The Board finds that there has not been substantial compliance with the Board's previous remand directives regarding the issue on appeal. Stegall v. West, 11 Vet. App. 268, 271 (1998). VA's duty to assist includes, in appropriate cases, "providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim." 38 U.S.C. § 5103A(d). "[O]nce the Secretary undertakes the effort to provide an examination when developing a service-connection claim, he must provide an adequate one." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical examination is adequate "where it is based upon considerations of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's "evaluation of the claimed disability will be a fully informed one." Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (quotations and citations omitted). The opinion must "support its conclusions with an analysis that the Board can consider and weigh against contrary opinions." Id. at 124. The "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). The June 2020 examiner opined that the Veteran's obstructive sleep apnea was less likely than not incurred in or caused by his military service. The examiner's rationale was that the Veteran's in-service medical records were silent for a diagnosis of obstructive sleep apnea in service, and his obstructive sleep apnea was not diagnosed until 2012, approximately 30 years after his separation from military service. This opinion is insufficient because the examiner focused solely on the lack of medical treatment for the Veteran's obstructive sleep apnea, offering no discussion, let alone consideration, of the Veteran's statements as to his symptoms or other evidence of record. The examiner offered no analysis as to why the 30-year gap between service and the diagnosis was significant. It is not only the continuity of treatment that is relevant, but also the continuity of symptoms regardless of treatment. Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). The examiner also opined that the Veteran's obstructive sleep apnea was less likely than not caused by or aggravated by his service-connected PTSD. The examiner explained that obstructive sleep apnea is an anatomical condition in which the structures of the upper airway relax/prolapse during sleep. She found "no medical evidence to support the notion that the anatomical condition" can be caused by or aggravated by mental health conditions, even though medical literature shows they can coexist. The Board finds this rationale unclear. Is the examiner saying there is no medical literature establishing a causative/aggravation link between obstructive sleep apnea and PTSD, or is the examiner saying she found no medical evidence particular to this Veteran to establish such links? The examiner did not discuss what evidence she would have expected to find in order to establish such links. In addition, the examiner did not indicate consideration of the articles submitted by the Veteran discussing obstructive sleep apnea being caused by or aggravated PTSD. In short, the examiner's opinions are conclusory and did not adequately take into consideration the evidence of record. Accordingly, the matter is REMANDED for the following actions: 1. Obtain any of the Veteran's outstanding VA medical records and associate them with the claims file. 2. After any additional records are associated with the claims file, obtain an addendum opinion from the June 2020 VA-contracted examiner, or another appropriately qualified clinician if that examiner is unavailable, to provide an opinion addressing the onset and etiology of the Veteran's obstructive sleep apnea. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. If the examiner decides an examination is necessary, then one shall be provided. The examiner is asked to provide an opinion regarding: (a.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's obstructive sleep apnea had its onset in or is otherwise etiologically related to an in-service event, injury, or disease. (b.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's currently diagnosed obstructive sleep apnea was caused by (proximately due to or as the result of) his service-connected posttraumatic stress disorder. (c.) Whether it is at least as likely as not (a 50 percent probability or more) that the Veteran's currently diagnosed obstructive sleep apnea was aggravated by his service-connected posttraumatic stress disorder. The examiner is advised "aggravation" means an increase in the severity of the underlying disability beyond its natural progression. In rending his or her opinions, the examiner should consider and, if deemed relevant, address the following, in addition to any other relevant evidence, where appropriate: (a.) A February 1, 1978, in-service medical record indicating the Veteran reported sleep disturbances with throat/pharynx issues for which the medical examiner appears to have diagnosed him with an upper respiratory infection ("URI"). Does this evidence have any relation to the Veteran's obstructive sleep apnea, such as symptomatology or onset? Please explain. (b.) The Veteran's February 2020 testimony before the Board that he experienced snoring and sleep disturbances while in service. February 2020 Hearing Transcript, at 9. (c.) The statement submitted by Veteran's girlfriend regarding the Veteran's sleep disturbances (received by VA March 29, 2019). (d.) The general statements of the Veteran regarding his obstructive sleep apnea and PTSD (received by VA on September 9, 2020), including his statement that he "never" had sleep issues prior to his July 1976 PTSD triggering event. (e.) The multiple medical/scientific articles submitted by the Veteran in his March 2, 2020, correspondence with VA indicating relationships between obstructive sleep apnea and PTSD. The examiner is reminded to consider the Veteran's lay statements regarding the nature and onset of his obstructive sleep apnea, including any evidence concerning continuity of symptomatology, as he is legally permitted to report his symptoms, past medical history, and experiences. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran's assertion of obstructive sleep apnea in service or the assertion that the Veteran's service-connected posttraumatic stress disorder led to his currently diagnosed obstructive sleep apnea. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. The examiner is advised that reliance on a lack of treatment without explanation is an insufficient rationale. If the examiner relies on medical treatises, the examiner should identify the treatises. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, 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.