Citation Nr: 18145328 Decision Date: 10/30/18 Archive Date: 10/26/18 DOCKET NO. 15-31 139A DATE: October 30, 2018 REMANDED The claim for service connection for sleep apnea, to include as secondary to chronic sinusitis, is remanded. REASONS FOR REMAND The Veteran honorably served on active duty in the United States Air Force from June 1989 to June 2009. This matter is on appeal from an August 2012 rating decision. The Veteran testified before the undersigned Veterans Law Judge during a June 2018 hearing. The Veteran seeks service connection for sleep apnea, contending that his sleep apnea had an onset in service, is related to service, or is secondary to his service-connected chronic sinusitis. He stated in his appeal to the Board that he experienced daytime fatigue and sleepiness and at times have lack of concentration due to sleeping. He also stated at the Board hearing that he was told that he would snore all night and would also stop breathing several times during the night. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A disability which is proximately due to or the result of a service-connected disease shall be service connected. 38 C.F.R. § 3.310(a). A claimant is also entitled to service connection on a secondary basis when it is shown that a service-connected disability has aggravated a nonservice-connected disability. Allen v. Brown, 7 Vet. App 439 (1995). The Veteran underwent a VA examination in relation to his sleep apnea service connection claim in August 2012. The VA examiner provided a diagnosis of obstructive sleep apnea. Therefore, the first element of service connection has been established as the Veteran has a diagnosis of obstructive sleep apnea. The same VA examiner opined that the claimed condition of sleep apnea was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner explained that the Veteran was not diagnosed with sleep apnea during service, nor did he report symptoms of sleep apnea while on active duty and within one year of discharge. She further opined that there is no nexus between the Veteran’s claimed chronic sinusitis and or left nasal blockage reported on the pre-discharge general medical physical conducted in May 2009 and sleep apnea is an anatomical condition. Here, the VA examiner relied on the lack of documentation in the Veteran’s service treatment records and failed to address Veteran’s statements, indicating the Veteran experienced symptoms consistent with sleep apnea during service. Pursuant to Savage v. Gober, 10 Vet. App 488 (1997), the Court held that sworn testimony alone was sufficient to establish an in-service “noting,” and that no specific in-service medical notation, let alone diagnosis, was required. The Veteran also indicated on his Form 9, received September 2015, that the condition may be related to environmental exposure while stationed in the Gulf. The Vet was reexamined in February 2018 for sleep apnea due to Gulf War exposure. The examiner confirmed a diagnosis of obstructive sleep apnea, but provided an opinion that “the Veteran’s sleep apnea is not due to an undiagnosed illness; not a diagnosable but medically unexplained chronic multi symptom illness of unknown etiology; not a diagnosable chronic multi symptom illness with a partially explained etiology; and not related to a specific exposure event/environmental hazard experienced during active service in Southwest Asia.” This is an internally inconsistent statement. She further stated that sleep apnea is a diagnosable condition and that according to literature, in adults, the most common cause of obstructive sleep apnea is obesity. The examiner did not mention whether or not she was referring to the Veteran in this instance. The Veteran submitted a statement in July 2018 from his private physician, Dr. R. P., which stated that upon review of the Veteran’s military medical chart, he has been treated recurrently for upper respiratory and chronic sinus issues. The doctor opined that these conditions more likely than not could have contributed to his eventual diagnosis of sleep apnea and therefore, should be medically related. However, the statement from the doctor did not provide any rationale as to how the upper respiratory and chronic sinus issues contributed to the Veteran’s sleep apnea. The record contains conflicting medical opinions regarding whether the Veteran’s sleep apnea is at least as likely as not related to an in-service injury, event, or disease, including chronic sinusitis. Accordingly, the Board must request an additional medical opinion or clarification discussing the discrepancy between the existing medical reports, given their temporal proximity, before re adjudicating the Veteran’s claim. See Romanowsky v. Shinseki, 26 Vet. App 289 (2013). As such, the question remaining is whether there is a nexus, or link, between the current diagnosis of obstructive sleep apnea and the Veteran’s service or the Veteran’s service-connected chronic sinusitis. The matter is REMANDED for the following action: 1. Obtain additional VA medical treatment records from September 2018 to present. 2. Arrange for a VA examination with a medical opinion to address the claim for service connection for sleep apnea. The decision for an in-person examination of the Veteran is left to the discretion of the examiner. The Veteran’s record, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: Is it at least as likely as not (a 50 percent or greater probability) that the Veteran has sleep apnea that a) had an onset in service; b) is otherwise related to service; or c) is related to or aggravated by the Veteran’s service-connected chronic sinusitis? The examiner should comment on the above and set forth the complete rationale for all opinions. The rationale for a negative opinion must not be based solely on the lack of a relevant in-service diagnosis or clinical findings and must reflect consideration of the competent lay assertions of pertinent symptomology from service to the present. In so opining, the opinion provider should consider all pertinent medical and lay evidence including statements from the Veteran, fellow soldiers who witnessed Veteran’s sleep habits and daytime drowsiness, and Veteran’s former spouse. The Veteran stated that he has had snoring problems since at least 1998 and had always seemed extremely tired by mid-day. He stated that he had also on numerous occasions, fallen asleep while eating dinner. The Veteran also stated that he would stop breathing while he was sleeping and his wife would have to push him to start breathing again. He stated that he never went to the doctor during service because he wanted to maintain his flight status and he did not know there was such a condition at the time during his military service. The Veteran submitted statements from numerous soldiers and personnel with whom he served with on active duty. These statements indicated that the Veteran had issues with snoring loudly at night and appearing groggy during the day during his time on active duty. The Veteran’s former spouse also submitted a statement which indicated that she had to shake the Veteran all throughout the night when he stops breathing and that he also jumps when he stops breathing. The Veteran also submitted a medical opinion from his own private physician. The VA examiner should also consider this evidence when providing rationale related to secondary service connection in conjunction with the two previous VA exams for sleep apnea conducted in August 2012 and July 2018. (CONTINUED ON NEXT PAGE) 3. After completing the above, and other development deemed appropriate, the Veteran’s claim should be re adjudicated based on the entirety of the evidence. If any relief sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Kim, Associate Counsel