Citation Nr: 21061590 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 15-24 520 DATE: October 4, 2021 THE ISSUE Entitlement to service connection for sleep apnea, to include as due to service-connected restless leg syndrome or tinnitus. REMANDED Entitlement to service connection for sleep apnea, to include as due to service-connected restless leg syndrome or tinnitus is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from June 1970 to March 1972 and in the Air Force for several periods of active duty for training (ACDUTRA) from December 1990 to April 1991, from November 1992 to June 1993, from July 1999 to December 1999, from February 2001 to June 2001, from October 2001 to April 2002, from November 2002 to June 2003, from October 2007 to February 2008, and from October 2008 to January 2009. This matter comes before the Board of Veterans' Appeals (Board) from a December 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. In October 2018, the Veteran testified at a video conference hearing which was chaired by the undersigned Veteran's Law Judge (VLJ). A transcript of the hearing is of record. This matter was last before the Board in August 2020 and March 2021 at which time it was remanded for further development. Although the Board regrets the further delay, it finds that an additional remand is necessary. Entitlement to service connection for sleep apnea, to include as due to service-connected restless leg syndrome or tinnitus is remanded. The Veteran contends that his sleep apnea is related to his service, to include as secondary to his service-connected restless leg syndrome and tinnitus. See October 2018 Board Hearing. The Board found in our August 2020 decision that the Veteran had not been afforded a medical opinion which considered the Veteran's contentions that his sleep apnea is due to his service-connected restless leg syndrome. Additionally, the Veteran also testified at the October 2018 Board hearing that his now service-connected tinnitus interfered with his sleep and the Board similarly found that there was no medical opinion which addressed that theory of entitlement. Specifically, while the VA medical opinion from May 2015 found that the Veteran's sleep apnea was less than likely incurred in or cause by long and varied work schedules during activations, it did not provide opinions as to the other theories of entitlement as raised by the Veteran at the October 2018 Board hearing. The Board also noted that private medical records from September 2018 indicated that the Veteran had sleep problems due to his restless leg syndrome. Therefore, the Board remanded this matter in order to afford the Veteran a new VA examination with opinions regarding all theories of entitlement. In relevant part, the Board directed the examiner to list all diagnosed sleep disabilities, other than insomnia, and opine whether any identified sleep disabilities at least as likely as not had their onset during active service or were related to any incident in service. Finally, the Board directed the examiner to opine whether any sleep disability identified was at least as likely as not either cause by or aggravated by the Veteran's tinnitus or restless leg syndrome. The Veteran was afforded such a VA examination in October 2020. The examiner identified the following sleep disorders: obstructive sleep apnea, restless leg syndrome (RLS), and periodic limb movement disorder (PMLD). The examiner opined that the Veteran's sleep apnea was not at least as likely as not due to his tinnitus or restless leg syndrome. However, in support of this opinion, the examiner provided the following rationale: "Because the tinnitus existed prior to diagnoses all identified sleep disorders other than insomnia, which include sleep apnea (2013), RLS (approx 2010) and PMLD (2013), neither a secondary relationship nor an aggravation can exist due to tinnitus." While the examiner found that the Veteran's PMLD was at least as likely as not related to his RLS, there was no rationale in the report theory of secondary service connection due to RLS as it relates to sleep apnea. In the most recent March 2021 decision, the Board found the October 2020 VA opinion to be inadequate for purposes of determining etiology as it is contradictory and unsupported by adequate rationale. Additionally, the Board noted that the opinion did not comply with the August 2020 remand directives. Therefore, the Board remanded the matter in order to afford the Veteran VA addendum opinions which comply with the August 2020 remand directives and contain adequate rationale concerning all theories of entitlement. Stegall, 11 Vet. App. 268, 271 (1998). The Veteran was afforded such VA addendum opinions in July 2021. The examiner found that the Veteran did not have any psychiatric related sleep disorder other than insomnia. The examiner stated that "currently, there is no medical rationale correlating the diagnosis of tinnitus or restless leg syndrome with the development of sleep apnea. Hence, it is less likely than not that the Veteran's sleep apnea proximately due to or the result of the Veteran's tinnitus or restless leg syndrome." The examiner also stated that "currently, there is no medical rationale correlating the diagnosis of tinnitus or restless leg syndrome with the aggravation of sleep apnea. Hence, it is less likely than not that the Veteran's sleep apnea was aggravated beyond its natural progression by the Veteran's tinnitus or restless leg syndrome." The examiner also found that the Veteran's claimed sleep apnea was less likely than not incurred in or caused by service, and explained that the Veteran's service treatment records were silent for a diagnosis or treatment for sleep apnea, and the Veteran had negative sleep apnea evaluations in 2008 and 2009. The Board continues to find the July 2021 VA addendum opinions inadequate for the purposes of determining the etiology of the Veteran's sleep apnea. The opinions are not supported by adequate rationale and are conclusory in nature. Therefore, the Board finds that an additional remand is necessary in order to afford the Veteran new medical opinions, supported by adequate rationale. The matters are REMANDED for the following action: 1. Obtain any outstanding and relevant VA and/or private treatment records. Should such exist, associate them with the claims file. 2. After completion of the first directive, return the claims file and a copy of this remand to the October 2020 examiner, or a suitable substitute, for the purposes of obtaining and addendum opinion as to the etiology of any sleep disorder, other than insomnia, to include sleep apnea. Provide the examiner with the Veteran's claims file for review and ask the examiner to confirm in his or her written report that he/she conducted such a review. Another examination is not required, but if the examiner determines another examination is necessary in order to answer the following questions, one should be provided. Following a complete review of the case file, the examiner should: (a) Identify all current sleep disorders found to be present. If the examiner determines that the Veteran does not have a sleep disorder, he/she must explain why this is the case. (b) For any diagnosed sleep disorder, other than insomnia, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., 50% or greater probability) that it had its clinical onset during active service or is related to any incident of service. (c) For any diagnosed sleep disorder, other than insomnia, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., 50% or greater probability) that it was either (i) caused by, or (ii) aggravated by, the Veteran's tinnitus or restless leg syndrome. A complete explanation must be provided for all opinions. If the examiner is unable to provide an opinion without resorting to speculation, he/she must state why this is the case. 3. After the requested development has been completed, readjudicate the Veteran's claim. If any of the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. E. Geary, 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.