Citation Nr: 20004848 Decision Date: 01/22/20 Archive Date: 01/21/20 DOCKET NO. 18-10 394 DATE: January 22, 2020 REMANDED Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from September 1988 to March 1989 and in the United States Army from January 2004 to March 2004, August 2005 to January 2007, May 2011 to June 2012, and June 2012 to June 2015. He also had a period of active duty training (ACDUTRA) in the Army National Guard from May 1999 to November 1999. The Veteran was recalled to the Army National Guard in January 2019. This matter is on appeal from a July 2016 rating decision. In April 2019, the Board remanded the appeal to obtain a VA medical opinion. Entitlement to service connection for sleep apnea is remanded. The Veteran seeks service connection for sleep apnea. During his first period of active service in the Navy, the Veteran had no complaints of frequent trouble sleeping. However, the Veteran was reprimanded in January 1989 for falling asleep in class, which the April 2019 Board remand noted could be a possible symptom of sleep apnea. A February 2002 private sleep study indicated that the Veteran had symptoms of loud snoring, headaches, hypertension, witnessed apneas, waking/gasping choking during sleep, falling asleep during the day, sleepiness while driving and excessive daytime sleepiness. A March 2002 private medical record reflects that, after review of a sleep study, the private physician diagnosed the Veteran with severe sleep apnea. In a November 2003 Report of Medical History in his service treatment records (STRs), the Veteran disclosed his sleep apnea. In a pre-deployment health assessment from June 2007, the Veteran’s sleep apnea and his continuous positive airway pressure (CPAP) use were discussed. The Veteran listed his sleep apnea on his physical profile forms in May 2008, January 2009, and March 2011. In January 2009 and March 2011, the Veteran’s use of a CPAP device was also noted, but he was found to be deployable worldwide, as long as his CPAP could be supported in the area of deployment. On a Functional Capacity Certificate Form 507 from September 2013, the Veteran reported sleep apnea for 13 years. The Veteran was afforded a VA examination in June 2016 in which it was noted that the Veteran was diagnosed with obstructive sleep apnea in March 2002. However, no etiological opinion was provided. In April 2019, the Board remanded the appeal to obtain an opinion regarding the following: whether the Veteran’s sleep apnea was incurred in, caused by, or aggravated by his first period of active service in the Navy; whether there is clear and unmistakable evidence that the Veteran’s sleep apnea pre-existed his active service; and, whether there is clear and unmistakable evidence that the Veteran’s condition did not increase during service or that any increase was due to the natural progression of the pre-existing sleep apnea. In July 2019, VA obtained medical opinions regarding the Veteran’s sleep apnea. The VA examiner opined that the Veteran’s sleep apnea was less likely than not incurred in or caused by falling asleep in class in January 1989. She explained that the Veteran’s service treatment records were silent for the evaluation diagnosis or treatment of a sleep disorder. There was no mention of falling asleep in class. This opinion is inadequate because it does not explain whether falling asleep in class was a symptom of the Veteran’s sleep apnea. The opinion relies on a silence in the service treatment records regarding falling asleep in class and a diagnosis for sleep apnea as its sole rationale. The Board notes that the Veteran’s service personnel records do include a reprimand for falling asleep during class. See the service personnel record dated January 1989. Remand of this matter is therefore required in order to obtain an addendum opinion to address whether the falling asleep in class was a symptom of the Veteran’s sleep apnea. Additionally, the July 2019 VA examination report indicates that the Veteran was referred for a sleep study in June 2019 by 375th Medical Group at Scott Air Force Base Clinic. This sleep study is not associated with the record. Therefore, the aggravation opinions of record are inadequate because they are based on an incomplete evidentiary record. Therefore, upon remand, the AOJ should also obtain the outstanding sleep study. The matters are REMANDED for the following actions: 1. Obtain the Veteran’s complete service treatment records, to include documents pertaining to his service in the Army National Guard from January 2019 to present, to include the sleep study the Veteran was referred to in June 2019 by the 375th Medical Group at Scott Air Force Base Clinic. Document all requests for information and responses in the claims file. 2. After receiving the outstanding records, obtain a VA medical opinion for an appropriate examiner. The VA examiner must provide opinions with respect to the following: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s current sleep apnea was incurred in or caused by an in-service injury, illness, or event from his service in the Navy from September 1988 to March 1989 or from his period of ACDUTRA from March 1999 to November 1999? The VA examiner must address the Veteran’s reprimand for sleeping during class in January 1989. (b.) Whether it is clear and unmistakable (obvious, manifest, and undebatable) that the Veteran’s pre-existing sleep apnea WAS NOT aggravated (i.e., worsened) during the Veteran’s subsequent periods of active service, beginning in January 2004 to March 2004, August 2005 to January 2007, May 2011 to June 2012, June 2012 to June 2015, and his current period beginning in January 2019? Whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase in severity was due to the natural progression of the Veteran’s sleep apnea? The VA examiner should set forth a complete rationale for the conclusions reached. If an opinion cannot be reached without resorting to speculation, the VA examiner must explain why. (Continued on the next page)   3. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Katherine K. Buckley Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R.R. Watkins, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.