Citation Nr: 18119167 Decision Date: 07/18/18 Archive Date: 07/18/18 DOCKET NO. 15-06 729A DATE: July 18, 2018 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to cardiomyopathy with coronary artery disease and sinusitis, is remanded. REASONS FOR REMAND The Veteran had active duty service from July 1972 to July 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in May 2018. A transcript of that hearing has been associated with the claims file. The Veteran was first diagnosed with moderate obstructive sleep apnea following a sleep study in July 2007. The Veteran was afforded a VA examination in March 2013. The VA examiner concluded that the Veteran’s sleep apnea was less likely than not incurred in or caused by the claimed in-service injury, illness, or event. The service treatment records were negative for any complaints, treatment, or diagnosis of sleep apnea, and the earliest report of any problems sleeping was in 2007, which was fifteen years after service. The VA examiner acknowledged the lay statements submitted in support of the claim, but found that they were inconsistent with the contemporaneous record, including the April 1992 retirement examination during which the Veteran reported no trouble sleeping. The Veteran later asserted that his sleep apnea was secondary to his service-connected disability of cardiomyopathy with coronary artery disease. See November 2013 supplemental claim; March 2015 VA Form 9. A September 2017 VA examiner apparently did not review the complete claims file and erroneously stated that there was no sleep study of record that met the VA criteria for sleep apnea; therefore, he was unable to confirm a current diagnosis. In January 2018, another VA examiner reviewed the complete claims file and addressed the Veteran’s secondary claim. He concluded that the Veteran’s sleep apnea was less likely than not proximately due to or the result of his service-connected cardiomyopathy with coronary artery disease. He reasoned that left heart catheterizations from 2003 and 2012 showed minimal non-obstructive coronary artery disease/cardiomyopathy, and there was no evidence of a functionally limiting condition that could contribute to obstructive sleep apnea. Rather, obstructive sleep apnea can be attributed to narrowing of the airway and being overweight. In fact, there was significant improvement of the Veteran’s sleep apnea with use of the CPAP device, thus attributing his obstructive sleep apnea to an upper airway obstructive process and less likely to mild coronary artery disease. The January 2018 VA examiner also explained that, based on the current medical literature, there is no evidence of a causative effect of mild coronary artery disease/cardiomyopathy on obstructive sleep apnea. Obstructive sleep apnea is not considered secondary to coronary artery disease/cardiomyopathy. The January 2018 VA examiner also found that the Veteran’s sleep apnea was less likely as not aggravated beyond its natural progression by his diagnosed mild coronary artery disease/cardiomyopathy. He noted that the left heart catheterizations in 2003 and 2012 found evidence of minimal disease. In addition, the May 2008 titration study confirmed that the Veteran had an excellent response to CPAP treatment regardless of his cardiac condition. As reported by his primary care provider in August 2017, there has been no change in the pressure setting (10 cm H2O) since 2007, affirming that there has been no natural progression of his obstructive sleep apnea. Nevertheless, during the May 2018 hearing, the Veteran and his representative raised another theory of entitlement. Specifically, they asserted that his sleep apnea may be secondary to his service-connected sinusitis. Therefore, the Board finds that an additional medical opinion is needed to address that claim. The matter is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for sleep apnea that are not already of record. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding VA treatment records. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any sleep apnea that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should state whether it is at least as likely as not that the Veteran’s sleep apnea manifested in service or is otherwise causally or etiologically related to the Veteran’s military service, to include any symptomatology therein. The examiner should also opine as to whether it is at least as likely as not that the Veteran’s obstructive sleep apnea was either caused by or permanently aggravated by his service-connected sinusitis. In rendering his or her opinions, the examiner should consider the medical literature submitted by the Veteran and his representative. See October 2017 correspondence. He or she should also consider the Veteran’s testimony regarding his symptoms during service, as well as the lay statements submitted on his behalf. See May 2018 Board hearing transcript; June 2012 correspondence. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion as it is to find against it.) A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. The AOJ should review the examination report to ensure compliance with this remand. If the report is deficient in any manner, the AOJ should implement corrective procedures. 4. After completing the above actions and any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs, the claim should be reviewed by the AOJ on the basis of additional evidence. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D.S. Chilcote, Associate Counsel