Citation Nr: 21002824 Decision Date: 01/15/21 Archive Date: 01/15/21 DOCKET NO. 18-36 647 DATE: January 15, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from March 1995 to March 2015, including service in Southwest Asia. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Veteran testified before the undersigned. This matter has been advanced on the docket pursuant to 38 C.F.R.§ 20.902. Entitlement to service connection for obstructive sleep apnea is remanded. The Veteran asserts that his obstructive sleep apnea had its onset during his active duty service. See December 2017 VA Form 21-526EZ, February 2018 Notice of Disagreement (NOD). In November 2017, the Veteran submitted to a VA examination. The VA examiner confirmed the Veteran’s diagnosis of obstructive sleep apnea. See also May 2017 Sleep Study. The VA examiner reviewed the Veteran’s complaints of trouble sleeping in service on November 7, 2014; June 27, 2012; and October 17, 2013. The examiner opined that the Veteran’s sleep apnea was less likely than not related to these in-service complaints of trouble sleeping as they were reported during mental health visits. The examiner also noted the Veteran’s body mass index (BMI) was less during active duty than its present rate of 32 percent. The Board notes the examiner failed to discuss the Veteran’s complaints in May 2007 of still feeling tired after sleeping; his October 2009 report of unrestful sleep, difficulty staying asleep, and daytime somnolence; his August 2010 report of trouble sleeping and feeling tired after sleeping; the December 2010 report of trouble sleeping; the December 2011 report of trouble sleeping that was noted to not be associated with stress or depression; the March 2012 notation that the Veteran’s trouble sleeping was the cause of his symptoms of stress and depression; the May 2012 report of fatigue, trouble concentrating, and trouble with sleep; and the November 2012 report that he was waking up frequently throughout night and experiencing low energy. See also December 2013 and February 2014 STRs. Critically, the Veteran reported snoring was a problem while on active duty, his STRs demonstrate a BMI in excess of 30 percent in October 2013, and his weight at the November 2017 VA examination was 165 pounds, the same as it was at the time of his discharge. See STRs. Accordingly, the November 2017 VA examiner’s opinion is of no probative value and an addendum opinion must be obtained on remand. All relevant treatment records should also be obtained. Additionally, at the December 2020 Board Hearing the Veteran testified that while serving in Afghanistan a fellow soldier woke him and expressed concern that the Veteran had stopped breathing in his sleep. See Board Hearing Transcript at 7. The Veteran is competent to report that his fellow servicemember reported this and the Board has no reason to doubt his credibility and finds this report consistent with the evidence of record. On remand, the examiner should consider this in-service symptomatology. Additionally, if direct service connection is not warranted, secondary service connection with obesity as an intermediate step should be explored. Any outstanding records should also be secured. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. Then, request a medical opinion from an examiner other than the November 2017 VA examiner to determine the etiology of the Veteran’s sleep apnea. The claims file should be made available to and reviewed by the examiner. No additional examination is necessary, unless the examiner determines otherwise. (a). The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea had its onset during active duty or is otherwise related to his active duty, to include as a result of his presumed exposure to environmental hazards while serving in Afghanistan. In answering this question, the examiner must address the following: (1.) the Veteran’s numerous reports of trouble sleeping and feeling tired after sleeping, to include in May 2007, October 2009, August 2010, December 2010, May 2012, November 2012, December 2013, February 2014, November 2014, and December 2014; (2.) the December 2011 STR noting the Veteran’s sleep troubles were not related to his mental health; (3.) the March 2012 STR noting the Veteran’s sleep trouble was causing symptoms of anxiety and depression; (4.) the Veteran’s weight of 111 pounds at the time of his entry onto active duty and his weight of 165 pounds at the time of his discharge, including a BMI noted to be in excess of 30 percent in October 2013; (5.) an undated STR noting snoring; (6.) the Veteran’s documented exposures in Afghanistan to sand, dust, smoke from burning trash/feces, and vehicle fumes; and (7.) the Veteran’s testimony that a fellow servicemember informed him that that he stopped breathing during sleep. Please accept this testimony as true and determine whether a nexus between sleep apnea and service is “medically plausible” based on the same. (b). If the answer to (a) is no, the examiner should also address the following: (1.) Is it at least as likely as not (a 50 percent or greater probability) that any service-connected disability, including his orthopedic disabilities and depressive disorder and medications to treat the same, caused the Veteran to become obese? (2.) If so, is it at least as likely as not that obesity was a “substantial factor” in causing his sleep apnea? (3.) If so, is it at least as likely as not that his sleep apnea would not have occurred but for obesity caused by the service-connected (or service-related) disability? A complete rationale must be provided for all opinions expressed. If the examiner cannot provide an opinion without resorting to speculation, the examiner must provide a reason why this is so and must state whether there is additional evidence that would permit the opinion to be rendered. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Rouse, 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.