Citation Nr: 18144807 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 16-24 032 DATE: October 25, 2018 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from June 1998 to April 2000. This matter is on appeal from a September 2015 rating decision. In December 2016, the Veteran submitted a motion to the Board to advance his case on the docket under 38 C.F.R. § 20.900(c) based on financial hardship. With the motion, the Veteran submitted a notice from his landlord demanding payment of rent and threatening eviction. Under 38 C.F.R. § 20.900(c), a case may be advanced on the Board’s docket for several reasons, to include as due to serious financial hardship. With respect to financial hardship, the Board does not ordinarily advance a case on the docket unless such hardship is grave in nature at the time the motion is granted, such as if the Veteran is homeless or in the process of foreclosure or eviction proceedings. In the instant case, the Veteran has not shown that his current financial problems are serious enough to warrant that his case be advanced on the docket. Accordingly, the motion to advance the case on the docket is denied. Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities, is remanded. Unfortunately, the Veteran’s appeal must be remanded for further development. Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide this issue so that the Veteran is afforded every possible consideration. The Veteran is seeking service connection for sleep apnea, which he contends is due to his service-connected disabilities, including depressive disorder and headaches. The Board notes that service treatment records show that the Veteran sought treatment for sleep disturbance and daytime fatigue during service in June 1999. He was suspected to have anemia and a sleep disorder. VA medical records show that the Veteran underwent a sleep study in November 2013 and was diagnosed with mild obstructive sleep apnea. In a March 2015 VA sleep medicine note, the Veteran’s treating clinician, Dr. S. M., noted that the Veteran has had multiple health problems, including gastroesophageal reflux disease (GERD), nose bleeds, posttraumatic stress disorder (PTSD), depression, and migraine headaches, that contribute to his sleep apnea. In April 2015, the Veteran submitted a sleep apnea disability benefits questionnaire (DBQ) completed by Dr. S. M. On the DBQ, Dr. S. M. noted that the Veteran has described having symptoms of sleep apnea while in the military, including poor sleep quality and insomnia. He concluded that the Veteran has multiple comorbid conditions, including depression, anxiety, and migraine headaches, that affect his obstructive sleep apnea. Although Dr. S. M. has twice provided a nexus between the Veteran’s sleep apnea and his service-connected disabilities, the Board cannot use these opinions as a basis to grant service connection because they are conclusory and not accompanied by a supporting medical rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (“[i]t is the fully articulated, sound reasoning for the conclusion…that contributes probative value to a medical opinion”); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); Horn v. Shinseki, 25 Vet. App. 231, 240 (2012). The Veteran underwent a VA examination in June 2015. During the examination, the Veteran reported that his symptoms of sleep apnea began in September 1998. On the DBQ, the examiner remarked that the Veteran’s service-connected status post left orbital and maxillary sinus fracture and surgery is “attributable to sleep apnea.” The examiner did not clarify this statement nor provide a medical opinion. VA obtained an addendum medical opinion on the issue of secondary service connection in August 2015. After review of the Veteran’s claims file, the VA examiner opined that the Veteran’s sleep apnea is less likely than not proximately due to, the result of, or aggravated by his depression and headaches. In his rationale, the examiner explained that the medical literature does not support a finding that depression or headaches are a cause or risk factor for sleep apnea as neither condition would affect the muscles in the back of the throat. He further noted that the Veteran does not have any complications associated with sleep apnea beyond that which would be expected from the condition and, therefore, “there are no aggravations that have arisen from the depression and the headaches.” VA obtained an addendum medical opinion on the issue of direct service connection in April 2016. After review of the Veteran’s claims file, the VA examiner opined that the Veteran’s sleep apnea is less likely than not incurred in or caused by the complaints of sleep disturbance during service. The examiner noted that the Veteran was not diagnosed with sleep apnea in service, and did not undergo a diagnostic sleep study until 2013, or 13 years after separation, and therefore concluded that there is no relationship between the sleep issues during service and the Veteran’s current sleep apnea. The examiner further explained that the Veteran’s complaints in service were not characteristic for obstructive sleep apnea. It does not appear that the examiner considered the Veteran’s lay statements regarding the types of symptoms of sleep apnea that he experienced during, and ever since, service. Instead, the examiner based his negative opinion solely on the lack of an in-service diagnosis of sleep apnea. An opinion based on a lack of in-service treatment or diagnosis without consideration of a veteran’s competent reports is inadequate. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007); see also Smith v. Derwinski, 2 Vet. App. 137, 140 (1992). Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As such, the Board finds that remand is warranted to obtain an adequate opinion in regard to direct service connection. The Board also notes that the medical evidence of record, including the March 2015 VA sleep medicine note and the June 2015 DBQ, has raised the possibility that the Veteran’s sleep apnea may be caused or aggravated by his other service-connected disabilities, such as GERD, nose bleeds, and residuals post status left orbital and maxillary sinus fracture. However, VA has only obtained a medical opinion that addresses secondary service connection in regard to depressive disorder and headaches. Accordingly, on remand, a medical opinion addressing secondary service connection must be obtained that adequately considers the Veteran’s other service-connected disabilities. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination with a VA physician of appropriate expertise to determine the nature and etiology of his sleep apnea. The examiner must review the Veteran’s entire claims file, to include a copy of this REMAND, and that review must be noted in the report. A complete history of symptoms should be elicited from the Veteran. Thereafter, the examiner should provide an opinion with respect to the following: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea was incurred in or caused by an in-service injury, event, or illness? The requested opinion must specifically address the June 1999 service treatment record in which the Veteran sought treatment for sleep disturbance and daytime fatigue and was diagnosed with a possible sleep disorder. (b) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s sleep apnea is caused by his service-connected disabilities, including depressive disorder, headaches, GERD, nose bleeds, and residuals post status left orbital and maxillary sinus fracture? (c) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s sleep apnea is aggravated (permanently increased in severity beyond its natural progression) by his service-connected disabilities, including depressive disorder, headaches, GERD, nose bleeds, and residuals post status left orbital and maxillary sinus fracture? In formulating the opinion, the term “at least as likely as not” does not mean “within the realm of possibility.” Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. It is imperative that the examiner’s report reconcile the evidence of record, to include the Veteran’s lay statements, service treatment records, post-service medical records, including all prior VA examinations and medical opinions, and any other lay evidence. The examiner must set forth a complete rationale for the conclusion(s) reached. If an opinion cannot be reached without resorting to speculation, the examiner must explain why. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Melissa Barbee, Associate Counsel