Citation Nr: 22015228 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 17-41 307 DATE: March 16, 2022 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran had active duty service from November 1965 to August 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded this matter in October 2019 and July 2021. The matter has now returned to the Board for review. In the August 2017 Form 9, Appeal to Board of Veterans' Appeals, the Veteran requested a hearing. In a September 2017 Statement in Support of Claim, the Veteran requested that his appeal be continued without a hearing. Accordingly, in the July 2021 decision, the Board deemed his hearing request withdrawn. 38 C.F.R. § 20.704 (e). Entitlement to service connection for OSA, to include as secondary to service-connected PTSD, is remanded. The Veteran asserts that his OSA is related to his active duty service, or in the alternative, related to his service-connected PTSD. In the July 2021 Board remand, the Board directed the RO to obtain an addendum opinion, or, if necessary, an examination for the Veteran's OSA. Pursuant to the remand, the Veteran was provided with a VA examination in October 2021. The Veteran has a right, as a matter of law, to compliance with remand instructions, and the Board has a duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). Regarding secondary service connection for OSA, the examiner was directed to provide an opinion regarding whether the Veteran's OSA was proximately due to or caused by his service-connected PTSD and/or aggravated beyond its natural progression by his service-connected PTSD. The Board also instructed the examiner to consider and discuss the statements made by the December 2015, August 2017, and June 2019 VA examiners indicating that the Veteran's OSA was relevant to the understanding or management of his PTSD. The Board also instructed the examiner to consider and discuss several articles submitted by the Veteran's representative pertaining to the relationship between OSA and psychiatric disorders. Specifically, the Board asked the examiner to consider and discuss the articles entitled, "Obstructive Sleep Apnea: Management considerations in psychiatric patients," "PTSD Severity Linked to Higher Risk of Sleep Apnea in Veterans" and "Obstructive Sleep Apnea in Posttraumatic Stress Disorder Comorbid with Mood Disorder: Significantly Higher Incidence than in either Diagnosis Alone." The examiner did not discuss the previous VA examiner's statements indicating that the Veteran's OSA was relevant to the understanding or management of his PTSD or discuss the preceding listed articles. Finally, the Board asked the examiner to opine whether the Veteran's service-connected disabilities, to include any medications prescribed as treatment for such, individually or combined, caused, in whole or in part, his obesity, which then played an intermediate role in causing his OSA. While the examiner opined regarding whether the Veteran's service-connected PTSD caused his obesity, the examiner did not, as instructed, provide opinions regarding whether any of the Veteran's other service-connected disabilities, individually or combined, caused, in whole or in part, his obesity. The Board finds that there has not been substantial compliance with the prior remand instructions, thus the appeal must be remanded to provide obtain opinions which are adequate to decide the claim. See Stegall. The matter is REMANDED for the following actions: Note, this appeal has been advanced on docket pursuant to 38 C.F.R. §§ 20.902; 38 U.S.C. §§ 7107. 1. Update the Veteran's VA treatment records. 2. Obtain an addendum opinion regarding whether the Veteran's OSA is secondary to his service-connected PTSD. The need for an in-person examination, or in the alternative, a virtual option, to include a telehealth interview or examination, is left to the discretion of the examiner. Based on any past or present examination results and a review of the Veteran's claims file, the examiner should provide the following opinions: (a.) Is the Veteran's OSA proximately due to his service-connected PTSD? Why or why not? (b.) Was the Veteran's OSA aggravated (i.e., worsened beyond natural progression) by his service-connected PTSD? Why or why not? Secondary service connection is warranted for any incremental increase in disability and does not require permanent worsening of the non-service-connected disability. Thus, the examiner should state whether there was a medically ascertainable increase in the Veteran's OSA, regardless of permanence. The examiner is reminded that he or she must address both causation and aggravation. In offering the above requested opinion, the examiner must consider and discuss the statements made by the December 2015, August 2017, and June 2019 VA examiners indicating that the Veteran's OSA was relevant to the understanding or management of the Veteran's PTSD. The examiner must also consider and discuss all three of the following articles submitted by the Veteran's representative regarding psychiatric disorders and OSA listed here: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4610889 https://www.psychiatryadvisor.com/home/topics/anxiety/ptsd-trauma-and-stressor-related/ptsd-severity-linked-to-higher-risk-of-sleep-apnea-in-veterans/ https://www.ncbi.nlm.nih.gov/pubmed/30107101 The examiner is informed that a positive opinion that the Veteran's OSA is proximately due to his service-connected PTSD and/or was aggravated beyond its natural progression by his service-connected PTSD does not require certainty. Rather, if the weight of the evidence is in approximate balance for and against a finding that his OSA is proximately due to or aggravated beyond progression by his service-connected PTSD, the examiner should make a determination favorable to the Veteran. Finally, regarding obesity, although obesity itself cannot be a disability in and of itself, the examiner should provide an opinion regarding whether the Veteran's obesity is an "intermediate step" between any of his service-connected disabilities and his OSA. The examiner is asked to provide the following opinion: (a.) Did any of the Veteran's service-connected disabilities, (to include prostate cancer and its residuals) or medications prescribed as treatment for any service-connected disability (to include any psychiatric medications) caused the Veteran to become obese or aggravated (worsened) his obesity, either individually or by the total combined effect of two or more service-connected disabilities (i.e., due to a lack of mobility or inability to exercise)? Why or why not? (b.) If so, was the Veteran's obesity a substantial factor in causing his OSA?; and (c.) Would the Veteran's OSA not have occurred but for the Veteran's obesity? The examiner is informed that a positive opinion regarding obesity as an "intermediate step" between a service-connected disability and OSA does not require certainty. Rather, if the weight of the evidence is in approximate balance for and against such a finding, the examiner should make a determination favorable to the Veteran. A complete and separate rationale for EACH opinion is required. Citation to accepted medical literature and/or principles would be of great assistance to the Board. If the medical examiner is unable to provide any opinion without resorting to speculation, he or she must explain why this is so. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Susan Leary 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.