Citation Nr: 22018774 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 18-39 047 DATE: March 30, 2022 REMANDED Entitlement to service connection for sleep apnea, including as secondary to service-connected posttraumatic stress disorder (PTSD) with generalized anxiety disorder and major depressive disorder, is remanded. REASONS FOR REMAND The Veteran served on active duty for training from October 2002 to February 2003 and on active duty in the U.S. Army from February 2003 to May 2004, with additional periods of Active Duty for Training (ACDUTRA) and Inactive Duty for Training (INACDUTRA) in the United States Army Reserves. The Veteran testified before the undersigned Veterans Law Judge at a virtual teleconference hearing held in April 2021. A transcript of the hearing is of record. The case came before the Board in July 2021, at which time the Board remanded the issue of entitlement to service connection for sleep apnea for additional development, including for verification of the Veteran's additional periods of ACDUTRA and INACDUTRA, and for the provision of a VA examination for a medical opinion to determine the nature and likely etiology of his sleep apnea. See July 2021 Board Remand. Unfortunately, as discussed in detail below, another remand is required because the record does not reflect that there has been substantial compliance with the Board's prior remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 1. Entitlement to service connection for sleep apnea, including as secondary to service-connected PTSD with generalized anxiety disorder and major depressive disorder, is remanded. In the July 2021 remand, the Board determined that the evidence of record was insufficient to allow the Board to make a decision on the Veteran's claim, and thus directed the agency of original jurisdiction (AOJ) to provide the Veteran a VA examination for a medical opinion regarding the etiology of the Veteran's claimed sleep apnea. See July 2021 Board Decision. Specifically, the Board instructed that the VA examiner address the following questions: (A) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea had its clinical onset during a qualifying period of active military service (whether on active duty, ACDUTRA or INACDUTRA) or is in any way related or attributable to any in-service disease, event, or injury. (B) Whether it is at least as likely as not (50 percent or greater probability) that sleep apnea was either (a) caused by, or (b) aggravated by the Veteran's service-connected acquired psychiatric condition, to include posttraumatic stress disorder (PTSD) with generalized anxiety disorder and major depressive disorder, including as a result of treatment and/or medication taken for this condition. See id. The Board also directed that the VA examiner consider and address medical evidence of record "indicating the possibility that the Veteran's sleep apnea arose during or immediately following his active duty service," as well as records suggesting "that [the Veteran's] weight gain was due, at least in part, to his psychiatric medication and reflecting that the severity of his sleep apnea symptoms was affected by his weight gain. Id. The requested examination occurred in October 2021. See October 2021 VA Sleep Apnea Disability Benefits Questionnaire (DBQ). In the accompanying medical opinion, the VA examiner opined that the Veteran's sleep apnea was "less likely than not (less than 50 percent probability) proximately due to [or] the result of" either the service-connected PTSD or "weight gain or obesity." See October 2021 VA Medical Opinion DBQ. In support of the opinion that the sleep apnea was not caused by the PTSD, the VA examiner acknowledged that medical studies reflect a "correlation significance" between PTSD and obstructive sleep apnea (OSA), but reasoned that the "correlation is not strong enough to be considered as a medical treatise for a causal relationship between PTSD and OSA." Id. Additionally, as concerning the negative findings regarding the purported causative relationship between sleep apnea and weight gain, the VA examiner provided the following rationale, which the Board has reproduced exactly as it was written: "Although there are studies which has shown obesity as a risk factor for sleep apnea, there are no specific studies which has shown is no weight loss measures (exercise, surgery for weight loss ) causes improvement in sleep apnea." No other medical opinions were provided. The October 2021 VA examination report is inadequate for several reasons. First, the rationale provided by the examiner for the determination that the Veteran's sleep apnea was not caused by weight gain is so unclear as to be virtually incomprehensible. See October 2021 VA Medical Opinion DBQ (finding against a causal relationship between sleep apnea and weight gain/obesity because "there are no specific studies which has shown is no weight loss measures (exercise, surgery for weight loss ) causes improvement in sleep apnea [sic]"). See also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Additionally, and perhaps most significantly, the VA examiner failed to address several questions posed in the Board's remand, including whether the Veteran's sleep apnea had its onset during or immediately following a period of active service, and whether the sleep apnea was aggravated by the service-connected PTSD. See October 2021 VA Medical Opinion DBQ. See also El-Amin v. Shinseki, 26 Vet. App. 136 (2013) (holding that the Board erred in relying on an examiner's finding of a Veteran's nonservice-connected disorder being "not related to" a service-connected disorder to conclude that the former was not aggravated by the latter). Accordingly, in light of the insufficiencies described above, the Board cannot conclude that there has been substantial compliance with the July 2021 remand instructions. See Stegall, 11 Vet. App. at 271; D'Aries, 22 Vet. App. at 105. As such, remand for a new medical opinion concerning the Veteran's claim for service connection for sleep apnea is required. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA or Department of Defense treatment records. 2. Thereafter, send the claims file to an appropriately qualified clinician, other than the VA examiners who performed the May 2018 and October 2021 VA sleep apnea examinations, if possible, for an addendum opinion as to the likely etiology of the Veteran's sleep apnea. Additional examination is not required unless specifically requested by the examiner. If deemed necessary, the examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The entire claims file and a copy of this REMAND must be made available to the examiner prior to the examination. The examiner must note in the examination report that the evidence in the claims file, including specifically both this REMAND and the July 2021 Board REMAND, has been reviewed. After reviewing the Veteran's full history by conducting a complete review of the claims file (including all available medical treatment records, VA examination reports, lay statements, and prior Board remands), the examiner must provide opinions as to the following: (i) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea had its clinical onset during a qualifying period of active military service (whether on active duty, ACDUTRA or INACDUTRA) or is in any way related or attributable to any in-service disease, event, or injury. (ii) Whether it is at least as likely as not (50 percent or greater probability) that sleep apnea was caused by the Veteran's service-connected acquired psychiatric condition, to include PTSD with generalized anxiety disorder and major depressive disorder, including as a result of any symptoms or manifestations of this condition (i.e., insomnia), and/or treatment or medication taken for this condition. (iii) Whether it is at least as likely as not (50 percent or greater probability) that sleep apnea was aggravated (any incremental increase in disability, regardless of its permanence) by the Veteran's service-connected acquired psychiatric condition, to include PTSD with generalized anxiety disorder and major depressive disorder, including as a result of any symptoms or manifestations of this condition (i.e., insomnia), and/or treatment or medication taken for this condition. In providing these requested opinions, the examiner should note that that the Veteran is competent to report the onset and duration of his symptoms as well as his medical history. Accordingly, the examiner must consider all lay assertions, to include any allegations of continuity of symptomatology. Additionally, the examiner must consider and address the following: * The evidence of record indicating the possibility that the Veteran's sleep apnea arose during or immediately following his active duty service, including the May 2013 Department of Defense (DOD) medical treatment note in which the Veteran reported that he had been experiencing sleep apnea symptoms for roughly 8 years, so since approximately 2005, see May 2013 Army Health Clinic Outpatient Treatment Note (reflecting the Veteran's report that his "loud snoring [and] frequent awakenings during the night" have been ongoing for 8 years); * The Veteran's VA treatment records reflecting repeated notations by his medical treatment providers indicating that his weight gain was due, at least in part, to his psychiatric medication and reflecting that the severity of his sleep apnea symptoms was affected by his weight gain, see, e.g., June 2008 VA Primary Care Outpatient Note (reflecting an assessment of "weight gain, probably due to" his prescribed psychiatric medication); April 2009 VA Physician Letter (noting that the Veteran was prescribed a medication for his psychiatric condition that "commonly causes weight gain in the patients who take this medication" and stating that "[t]his could have very well contributed to his recent weight gain"); December 2011 VA Mental Health Telehealth Note (noting that the Veteran's psychiatric medication has side effects including "the potential for some weight gain"); May 2012 VA Polysomnography Consultation Report (diagnosing sleep apnea and reflecting treatment recommendations including that "weight loss is likely to be beneficial and should be encouraged"); July 2012 VA Sleep Disorders Clinic Note (indicating that weight loss would have a positive impact on the Veteran's sleep apnea symptoms); and * The Veteran's VA treatment records indicating that manifestations of his service-connected psychiatric disorder, including insomnia, affect his ability to utilize his CPAP machine effectively, see, e.g., April 2021 VA Sleep Disorders Clinic Note (noting that the Veteran's psychiatric pathology, including the associated insomnia, causes issues with using the CPAP mask). The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of any identified disability. If the Veteran's reports regarding his history of symptoms of and treatment for any diagnosed disability are rejected, the examiner must provide a reason for doing so. 3. All examination findings, along with the complete explanation for all opinions expressed, must be set forth in the examination report. If the examiner is unable to answer any question without a resort to speculation, then he or she should so indicate and provide a rationale for why an answer could not be provided. 4. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 5. Following completion of the above directive, review the claims file to ensure compliance with this remand. If any examination report does not include adequate responses to the specific opinions requested, it must be returned to the examiner for corrective action. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. McCabe, 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.