Citation Nr: 21005233
Decision Date: 01/29/21	Archive Date: 01/29/21

DOCKET NO. 17-07 807
DATE: January 29, 2021

REMANDED

Entitlement to service connection for sleep apnea is remanded.

REASONS FOR REMAND

The appellant is a Veteran who served on active duty from February 1959 to February 1985.  

This matter comes before the Board of Veterans' Appeals (Board) by order of the United States Court of Appeals for Veterans Claims (hereinafter “the Court”) in March 2019, which granted a joint motion for remand (JMR) vacating an April 2018 Board decision and remanding the issue on appeal.  The matter initially arose from an April 2018 rating decision by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA).  The Board remanded the matter for additional development in July 2019 and October 2020.

1. Entitlement to service connection for sleep apnea is remanded.

Although the case was previously remanded, the Board finds that additional development is required for an adequate determination.  In a January 2021 brief in support of the appeal, the Veteran’s service representative provided excerpts of medical literature, in essence, addressing a correlation between chronic pain and insomnia/sleep disorders and obstructive sleep apnea and chronic widespread pain.  The Veteran is service connected, in relevant part, for chronic lumbar strain, radiculopathy of the bilateral lower extremities, and ulcerative colitis. Although no explicit argument was presented indicating how these studies/articles were believed to be relevant to the issue on appeal, it may be presumed that the Veteran is raising a secondary service connection claim.  As this matter has not been addressed by VA medical opinion or otherwise developed for appellate review, further VA action is required.

The matters are REMANDED for the following action:

1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s sleep apnea, or any other sleep disability manifest during the appeal period, at least as likely as not: 

i. had its initial onset in service or is otherwise etiologically related to the Veteran’s active service? 

ii. is proximately due to a service-connected disability? 

iii. underwent any incremental increase in disability, regardless of its permanence, due to a service-connected disability?  The term “incremental increase in disability” means additional impairment of earning capacity.  Objective measurement, or numerical quantification, is not required to ascertain an increase in disability.  Moreover, any “incremental increase in disability” need not be permanent. 

Provide a rationale to support the opinions. In so doing, the examiner is asked to address the suggested argument that chronic pain resulting from the Veteran’s various service connected disability has either caused his sleep apnea or aggravated (increased the severity) of his sleep apnea disability. Such should include a discussion of the various studies cited in the January 20, 2021 Written Brief Presentation.  

 

 

MICHAEL A. HERMAN

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	T. Douglas

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.