Citation Nr: 21000796 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 17-04 187 DATE: January 6, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from April 1984 to July 1987, from November 1990 to May 1991, from May 2003 to June 2004, and from July 2013 to August 2014. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from February 2016 rating decision and a June 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island (Agency of Original Jurisdiction (AOJ)). The Veteran and his wife testified at a virtual hearing before the undersigned in September 2020. A transcript of the proceeding is of record. The evidence of record reveals that the Veteran has a current diagnosis of mild sleep apnea, as documented by an undated letter from a VA nurse practitioner to the Veteran, a January 2016 sleep study, and a February 2016 VA examination. However, the examiner who performed the February 2016 VA examination determined it was less likely as not that the Veteran developed sleep apnea as a result of a specific exposure event during his service in Southwest Asia. He rationalized, “The weight of medical literature supports that obstructive sleep apnea is a condition in which the loose, floppy tissues in the throat occlude the passage of air during the relaxation of sleep. It is thus a biomechanical condition and has no nexus to a specific exposure event experienced by the Veteran during service in Southwest Asia.” Nonetheless, the Veteran testified during his virtual hearing in September 2020 that he began experiencing symptoms commonly associated with sleep apnea during his tour in Afghanistan in 2013 and 2014. He reported that he would wake up frequently and walk around. His wife also provided testimony, explaining that when he returned from Afghanistan, he would stop breathing in his sleep and often twitched or jumped. The Veteran and his wife both agreed that he did not have these problems prior to his deployment, and the Veteran stated he still has problems sleeping despite his use of a CPAP machine. His Notice of Disagreement also reported that his roommate during service would wake him up often because he was snoring loudly and gasping for air. He included on his VA Form 9 that he suffered from daytime somnolence. The Board acknowledges the examiner’s opinion suggesting there is no correlation between the Veteran’s exposure to hazardous materials and his development of sleep apnea. However, the examiner did not consider whether the Veteran’s sleep apnea manifested organically during his most recent period of active duty service, i.e. whether it developed within one year of August 2014. Because the Veteran was diagnosed with sleep apnea as early as January 2016 (a mere 18 months after his most recent active duty service), the Board is compelled to seek an opinion that considers whether the symptoms experienced by the Veteran during active duty service were, in fact, attributable to sleep apnea prior to the date of his formal diagnosis. To that end, the Board will remand for an opinion. The matters are REMANDED for the following action: 1. The AOJ shall associate the Veteran’s most recent outstanding VA medical treatment records with his file, specifically those records from April 2016 to the present. 2. Then, the AOJ should seek an opinion that considers the etiology of his sleep apnea. The claims file must be made available to and be reviewed by the examiner. The examiner should accept as fact that the Veteran has a current diagnosis of sleep apnea. The examiner should specifically provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such sleep apnea occurred in or is otherwise etiologically related to the Veteran’s military service. More specifically, the examiner should determine whether it is at least as likely as not that the Veteran’s sleep apnea developed during his most recent period of active duty service, i.e. July 2013 through August 2014. The examiner should identify the criteria for diagnosing sleep apnea and provide opinion whether there is any medical reason to accept or reject the belief that the credible lay witness accounts of symptoms such as snoring loudly and stopped breathing in his sleep with twitching or jumping manifested prior to discharge in August 2014 did or did not represent the manifestation of sleep apnea confirmed by sleep study in January 2016. The examiner should observe that the lay witness accounts of symptoms in 2014 are credible and should be accepted as true even though not documented. The examiner should consider the following: • the Veteran’s January 2016 lay statement; • CAPRI VA treatment records, documenting a diagnosis of sleep apnea; • the January 2016 sleep study; • the February 2016 VA examination and opinion; • the undated letter from nurse practitioner J.L., reflecting a diagnosis of sleep apnea; • the Veteran’s Notice of Disagreement; • the Veteran’s VA Form 9; and • the September 2020 hearing testimony. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. Thereafter, readjudicate the claim. If any benefit sought on appeal remains denied, furnish the Veteran and his representative, if any, a supplemental statement of the case and an appropriate period of time to respond. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Victoria A. Banis, Associate 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.