11-26 563
11-26 563
Board of Vet. App.Nov 30, 2017Background
- Veteran served on active duty Sep 1990–May 1992 and appealed denial of service connection for sleep apnea (claimed as sleep apnea/OSA/CSA).
- Initial RO decision: October 2010; Board hearings and remands followed (Travel Board hearing May 2015; Board reopened in Sept 2015; remanded June 2016 and again June 2016–Sept 2016 development).
- New medical records (Jan 13, 2017 sleep lab addendum) documented central sleep apnea (CSA) / complex sleep apnea and opined chronic narcotics likely caused the condition; provider gave no detailed rationale or identification of narcotics.
- A September 2016 medical opinion addressed PTSD association with OSA but did not consider Veteran’s opiate and alcohol use or whether those substances caused or aggravated sleep apnea.
- Veteran did not return requested release forms for private records (including from Dr. Lewis); Board found incomplete compliance with prior remand instructions and granted Veteran’s motion to advance docket due to financial hardship.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether sleep apnea (OSA/CSA) is service connected | Veteran claims continuity since service and that sleep apnea may be related to service/used substances to self-medicate PTSD | VA/Board relied on prior opinions finding less than 50% probability OSA due to PTSD and sought more development | Remanded for further development and a new/addendum medical opinion addressing diagnoses, etiology, and substance-related causation/aggravation |
| Whether prior remand instructions were complied with | Veteran/rep argued Board’s June 2016 remand directives were not fully followed (examiner failed to consider opiate/alcohol use) | AOJ had obtained an opinion but examiner omitted consideration of opiate/alcohol issue and new CSA finding | Board found insufficient compliance with prior remand (Stegall) and ordered corrective remand |
| Whether new VA sleep-lab opinion attributing CSA to narcotics is adequate | Veteran relies on VA sleep-medicine note that chronic narcotics likely caused complex sleep apnea | AOJ’s record lacked examiner rationale and specifics about the narcotics cited (source/use) | Remanded for examiner to discuss the new CSA diagnosis and narcotics opinion with medical rationale and specificity |
| Whether Veteran must cooperate with records development | Veteran had not returned release forms for private provider (Dr. Lewis) | VA requested releases and notified Veteran; failure to provide impedes development | Board reminded Veteran of duty to cooperate and ordered AOJ to re-request releases and obtain private/VA records; remand stayed pending development |
Key Cases Cited
- Stegall v. West, 11 Vet. App. 268 (Board remand creates a duty to comply with remand instructions)
- Wood v. Derwinski, 1 Vet. App. 190 (a veteran must cooperate with VA in obtaining evidence; duty to assist is not one-way)
- Kutscherousky v. West, 12 Vet. App. 369 (veteran retains right to submit additional evidence during remand)