Citation Nr: 21001778 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 12-02 340 DATE: January 11, 2021 REMANDED Entitlement to service connection for a sleep disorder, to include obstructive sleep apnea (OSA), is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from October 1960 to March 1986. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an April 2010 rating decision issued by a regional office (hereinafter agency of original jurisdiction or AOJ) of the Department of Veterans Affairs (VA). It was previously remanded to the AOJ for further development in November 2017 and June 2020 and has now been returned to the Board for review. Entitlement to service connection for a sleep disorder is remanded. While the Board sincerely regrets further delay, an additional remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. The Veteran’s original claim was for a “problem sleeping.” During the period on appeal, he has been diagnosed with obstructive sleep apnea (OSA), complained of sleeplessness due to body aches and been prescribed trazodone for insomnia. Therefore, the Board has recharacterized his claim as one for a sleep disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board previously remanded this matter in November 2017 in order to afford the Veteran a VA examination to determine the etiology of his sleeping difficulties, which occurred in November 2019. In a June 2020 decision, the Board declared that the November 2019 VA examination, which noted a diagnosis of OSA, was inadequate. In rendering a negative nexus opinion, the November 2019 VA examiner failed to address the Veteran’s service treatment records, which include an October 1975 complaint of tiredness for a period of three to four months. In the June 2020 remand, the Board instructed the AOJ to obtain an addendum nexus opinion specifically addressing the Veteran’s inservice complaint of three to four months of tiredness in relation to the etiology of his OSA diagnosis. The remand directed the examiner to provide a full rationale for any opinion offered. The AOJ obtained an addendum opinion in August 2020. The VA examiner opined that the Veteran’s OSA was less likely than not related to his inservice complaint of tiredness. The examiner noted that the Veteran’s service treatment records contained no documentation of OSA while on active duty. He stated, “tiredness is a vague, non-specific and very common complaint that can be caused by a multitude of conditions.” The examiner indicated that it was not medically possible to state that the Veteran’s tiredness was due to OSA without clinical documentation of a diagnosis (usually based on a polysomnogram study) and that to state otherwise would be mere speculation. The Board finds the August 2020 addendum opinion inadequate, and thus further development is required prior to adjudication of the claim. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). While the examiner indicated that he could not state, without resorting to speculation, that the Veteran’s inservice report of months-long tiredness was due to OSA, he did not provide a supporting rationale for his opinion that the Veteran’s OSA was less likely than not due to his active service, only noting that there was no in-service diagnosis of OSA. The Board finds this rationale inadequate. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (the absence of inservice treatment records is an insufficient basis, by itself, for a negative opinion). Therefore, remand for an addendum opinion with adequate supporting rationale is required. Additionally, based on the record, the examiner should address any other sleep disorders that manifested during the appeal period. The matter is REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to his claim. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. Obtain an addendum opinion from a qualified VA examiner regarding the nature and etiology of the Veteran’s sleep disorder(s). The need for an additional exanimation is left to the discretion of the examiner. After a review of the Veteran’s claims file, the examiner should respond to the following: a) List all sleep disorders the Veteran manifested during the appeal period. b) For each disorder listed, is it at least as likely as not (50 percent or greater) that the disorder occurred in or is otherwise due to the Veteran’s active service? c) Alternatively, the examiner is requested to clarify the etiology of the listed sleep disorders and state whether there is any medical reason to accept or reject the Veteran’s lay assertion that his inservice tiredness was the initial manifestation of a sleep disorder. d) In formulating the requested opinion(s), the examiner is requested to address the following: • The Veteran’s October 1975 inservice complaint of tiredness for the past three to four months. •A December 2009 phone call from the Veteran reporting he was sleeping less than four hours due to body aches. •A January 2010 statement in support of his claim in which he describes waking up in the middle of the night to “shake out” his hands and wrist; and indicates his doctors determined carpal tunnel syndrome was keeping him up at night. •2011 VA treatment records indicating the Veteran has chronic sleep difficulties; a PTSD intake consultation reporting “quite a bit” of trouble falling and staying asleep; and a sleep study diagnosing OSA. •June 2018 VA treatment records describing “mild OSA” in which the Veteran denies using a CPAP machine while sleeping, but reports continued use of prescribed trazodone “as needed at bedtime for sleep.” (Continued on the next page)   The examiner should provide a complete rationale for any opinion(s) provided. If the examiner is unable to offer the requested opinion(s), it is essential that the examiner provide a rationale for the conclusion that an opinion could not be provided without resorting to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. Robert N. Scarduzio Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. C. Schumacher, 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.