Citation Nr: 18155381 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 16-58 125 DATE: December 4, 2018 REMANDED The issue of entitlement to service connection for obstructive sleep apnea, to include secondary to fibromyalgia, is remanded. The issue of entitlement to service connection for fibromyalgia is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1985 to July 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. Service Connection Claims are Remanded While further delay is regrettable, additional development is necessary prior to adjudication of the Veteran’s service connection claims. In October 2016, the Veteran was afforded VA examinations pertaining to her obstructive sleep apnea and fibromyalgia claims. In regard to obstructive sleep apnea, the examiner concluded that the Veteran’s sleep apnea was less likely than not caused by or a result of her active duty service. For support, the examiner stated that “[i]t was not found where the Veteran was seen for sleep apnea while on active duty or shortly after getting off of active duty.” Similarly, in regard to the fibromyalgia claim, the examiner concluded that the Veteran’s fibromyalgia was less likely than not caused by or a result of her active duty service time, finding that “[i]t was not found where the Veteran was seen for fibromyalgia while on active duty or shortly after getting off of active duty.” Each of the VA medical examination reports neither addressed nor discussed the Veteran’s reported in-service symptoms associated with sleep apnea and fibromyalgia. Specifically, in November 2013, the Veteran cited to several symptoms documented in service treatment records and contended that those symptoms relate to her current obstructive sleep apnea. See November 2013 Notice of Disagreement. The Veteran referenced symptoms of sore throat, insomnia, fatigue, and obesity. In addition, in the November 2013 Notice of Disagreement she stated that she had pain in the ankles, neck, shoulders, knee, hip, thighs, and shins. She associated the musculoskeletal pain that she experienced in service to her current fibromyalgia. Despite the Veteran’s report that her in-service symptoms are related to the claimed conditions, the October 2016 VA examiner failed to consider the Veteran’s lay statements and evaluate the cited service treatment records. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed.Cir.2006) (noting that a VA’s examiner’s opinion, which relied on the absence of contemporaneous medical evidence, “failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran’s] disability such that his claim of service connection could be proven”); Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (finding a medical examination inadequate where the examiner “impermissibly ignored the appellant’s lay assertions that he had sustained a back injury during service”); Stefl v. Nicholson, 21 Vet. App. 120 (2007). As such, the Veteran should be afforded new VA examinations on remand to determine the etiology of obstructive sleep apnea and fibromyalgia. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of her fibromyalgia. The claims file must be sent to the examiner for review. All necessary tests should be conducted. Following review of the claims file, the examiner must address the following: (a.) Please state whether it is at least as likely as not that fibromyalgia had its onset in service or is otherwise related to service. Please explain why or why not. (b.) Please specifically consider and discuss whether any of the Veteran’s symptoms (i.e. ankle pain, knee pain, low back pain, and neck pain edematous right hand, right knee pain) during the period of active service or within a year of discharge were early manifestations of rheumatoid arthritis. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of her obstructive sleep apnea. The claims file must be sent to the examiner for review. All necessary tests should be conducted. Following review of the claims file, please address the following: (a.) The examiner should indicate whether it is at least as likely as not (50 percent probability or greater) that her obstructive sleep apnea had its onset during her active service or is otherwise etiologically related to her active service. (b.) If not directly related to either service, the examiner should indicate whether it is at least as likely as not (50 percent probability or more) that the Veteran’s sleep disorder is either (a) caused by or (b) aggravated by (made permanently worse as a result of ) her fibromyalgia. A complete rationale for the opinion rendered must be provided. (c.) If the examiner determines that the sleep apnea did not have its onset in service and a service-connected disability did not cause or aggravate the sleep apnea, he or she should provide an opinion as to the most likely etiology of the sleep apnea. In the event that the examiner determines that weight gain is the most likely etiology of the sleep apnea, the examiner should offer an opinion as to whether it is at least as likely as not that the weight gain was caused by service, to include whether any weight gain is at least as likely as not related to an inability to exercise secondary to a service-connected disability (e.g. bilateral ankle instability and pes planus). (d.) The examiner should specifically address the Veteran’s lay statements (e.g. November 2013 Notice of Disagreement and November 2016 Form 9), Veteran’s husband’s November 2012 statement, and the October 2013 statement from K.L.Y) as well as any cited medical evidence. 3. If the examiner cannot provide the requested opinions without resorting to speculation, please expressly indicate this and state why that is so (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). (Continued on the next page) S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. Altendorfer, Associate Counsel