Citation Nr: 21000361 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 09-44 935 DATE: January 5, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to the service-connected residuals of a nose fracture, including a deviated septum, is remanded. REASONS FOR REMAND The Veteran had active service from May 1987 to June 1999 and from August 2000 to January 2003. This matter comes before the Board of Veterans’ Appeals on appeal from a December 2007 rating decision. During the course of this appeal, the Veteran requested a hearing before the Board, but withdrew that request in correspondence received in October 2015. In January 2018, the Board denied service connection for sleep apnea. The Veteran appealed the Board’s denial to the United States Court of Appeals for Veterans Claims (Veterans Court), which vacated and remanded the matter to the Board, pursuant to a Joint Motion for Remand (Joint Motion) in October 2018. In May 2019, the Board remanded the matter to the agency of original jurisdiction (AOJ) for further evidentiary development. Service connection for OSA The Board cannot make a fully-informed decision on the issue of entitlement to service connection for OSA because the November 2019 opinion does not appear to be adequate. First, it is unclear whether the clinician considered the Veteran’s second period of service which ended in 2003. The intent of the previous remand was to obtain an opinion as to whether the pattern of increasing weight noticed across the Veteran’s two periods of service from a low of 175 pounds to 230 pounds by the approximate time of the end of his second period of service at least as likely as not caused him to develop OSA. The clinician appears to discount the role played by the Veteran’s weight in 2003 and 2004 based on the BMI the Veteran had at the time and the type of physical condition that he was in (as an athlete) during his service, but appears to accept the connection between the Veteran’s weight and his OSA in later treatment records despite the fact that he was diagnosed with OSA – most probably sometime in 2004. The examiner should explain more clearly any reasons for reaching this conclusion. The date of the Veteran’s diagnosis is not certain, but based on the evidence it appears that he was diagnosed and treated for OSA at some point in the year 2004, likely less than 24 months after his service ended. The clinician also appears to discount lay evidence in which an individual documents witnessing the Veteran snore loudly and choke in his sleep. Specifically, the clinician stated that these symptoms are not unique to OSA and that a lay observer is not qualified to determine the etiology or significance of these observed symptoms. While this is true, additional explanation as to why these symptoms are not at least as likely as not attributable to a then undiagnosed sleep apnea condition in-service is necessary given that the Veteran appears to have been diagnosed with and treated for sleep apnea – certainly within the next 24 months after his service ended. Finally, while this appeal has been ongoing, the Veteran’s residuals of a nose fracture, including a deviated septum, have been service-connected. This deviated septum is acknowledged as a risk factor for developing OSA. However, the previous opinion does not appear to have adequately discussed whether it is at least as likely as not that this condition either caused or aggravated the Veteran’s OSA condition. Accordingly, this matter is REMANDED for the following actions: Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s OSA at least as likely occurred in, or is otherwise related to, his active service, including his increasing weight across his two periods of service (and the time between them)—or is at least as likely as not either proximately due to or aggravated beyond its natural progression by the Veteran’s service-connected nasal fracture and deviated septum. In rendering these opinions, the clinician should account for why the lay reports of symptoms that appear to be related to OSA during service are, or are not, evidence of OSA in light of the Veteran’s diagnosis with OSA which occurred sometime in the calendar year (or less than 24 months) after his final period of service. The clinician should also explain any reasons for concluding whether or not the Veteran’s increasing weight during his two periods of service caused or contributed to the development of OSA, especially in light of the fact that his OSA appears to have been diagnosed relatively recently after his release from service, and prior to his gaining additional weight by 2007. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Steven H. Johnston, 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.