Citation Nr: 21061708 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 13-12 170 DATE: October 5, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from July to November 1991, and from August 1992 to July 1995. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision which, in relevant part, denied service connection for OSA. In May 2015, the Board remanded this matter for issuance of a Statement of the Case (SOC) pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). In August 2016, the case was remanded for additional development. An October 2017 Board decision, in pertinent part, denied service connection for OSA. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (CAVC), resulting in a November 2018 Joint Motion for Partial Remand (JMPR) by the parties. A December 2018 CAVC Order remanded the matter for action consistent with the terms of the JMPR. In September 2019 and in January 2021, the case was remanded for additional development. [The January 2021 Board decision also denied entitlement to a rating in excess of 20 percent for a lumbar spine disability; accordingly, that matter is no longer before the Board.] Entitlement to service connection for OSA The Board is aware that this matter was remanded before (and regrets the delay inherent with another remand); but because there was not substantial compliance with previous remand instructions, another remand is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the November 2018 JMPR, the parties agreed that the Board erred by failing to address favorable evidence, including the Veteran's lay report of "loud snoring since 1995" (the year he separated from service). In January 2019, the Veteran submitted two buddy statements in support of the claim. One is from a former housemate from 1991 to 2000, who reported that the Veteran snored loud and at times could be heard snoring even with the doors closed. The other is from a friend who reported that in 1992 and 1993, he could not fall asleep during their trips to Las Vegas because the Veteran snored loud and had heavy breathing. In September 2019, the Board remanded the matter for an advisory medical opinion that considers the lay statements of record regarding onset of symptoms (including snoring). In January 2021, the Board again remanded the matter, as it found that the January 2020 opinion was not fully adequate, and it found an alternative theory of entitlement (namely that obesity may have been an intermediate step, caused by the Veteran's service-connected lumbar spine disability) was raised by the record. The Board directed the examiner to specifically address: the service treatment records (STRs) which note complaints of fatigue and feeling "dazed" in service; the Veteran's lay reports of snoring since 1995, including in a February 15, 2017 VA treatment record; and the two buddy statements noted above. The Board directed that, for the purpose of the opinions requested, the lay statements of snoring in service are to be considered credible. On April 2021 VA (fee basis) sleep apnea examination, OSA was diagnosed. Following review of the record and interview/examination of the Veteran, the examiner opined that the Veteran's OSA is less likely than not related to his service. He stated "There is no evidence that his fatigue is a cause of his Sleep Apnea, sleep apnea is a result of obstruction which he did not have in service. Separation exam [May 1995] no sleep problems." He proceeded to address one buddy statement and wrote, "...snoring loudly...is evidence of OSA, which does not prove that he had OSA in service." That conclusion, without additional clarification, may be interpreted as inconsistent and conflicting. [He did not address the other buddy statement.] Thereafter, the examiner wrote, "Veteran would have had complaints of snoring and would have breathing repeatedly stop and start. No documented complaints in STRs." Based on this statement, it is not clear whether the examiner reviewed all of the lay statements, or treated them as credible (as directed). [The examiner also provided an opinion addressing the allegation that obesity was an intermediate step in the Veteran's development of OSA. He explained that the Veteran is not obese, and has never been obese. That opinion appears adequate for rating purposes.] In a July 2021 statement, the Veteran's attorney argued that, "While the VA examiner rules out that the [Veteran's] sleep apnea is due to obesity and the low back condition, we fail to see any opinion addressing the [V]eteran's obstructive sleep apnea directly related to service. In failing to do so, the VA did not comply with the Board remand instructions violating, Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007)." He asked that the Board grant the claim or remand the matter for an addendum opinion "to properly discuss the [V]eteran's sleep apnea as a direct result of service, unrelated to obesity that the [V]eteran does not presently have." The Board agrees that remand is necessary for an addendum advisory medical opinion. Although the Board disagrees that the April 2021 examiner failed to address the direct service connection theory of entitlement, the Board finds that the opinion is not fully responsive to the Board's remand directives, and that corrective action is necessary. Stegall, 11 Vet. App. at 271. The examiner failed to address one of the buddy statements (from a 1991 to 2000 housemate, who reported that the Veteran snored loud, at times to the extent that the snoring could be heard behind closed doors). The examiner also stated that fatigue does not cause sleep apnea; however, the question presented is whether the documented reports in service of feeling fatigued and dazed were manifestations of sleep apnea/ reflected onset of sleep apnea. Finally, it is not clear whether the examiner treated as credible the Veteran's reports of snoring in service; he merely wrote that the Veteran "would have had complaints of snoring" but there are no documented complaints in the STRs (suggesting he considered hat the Veteran did not snore during service. Accordingly, remand for a more complete addendum advisory medical opinion addressing the direct service connection theory of entitlement is necessary. Lastly, remand is necessary as the record suggests that relevant private treatment records remain outstanding. In August 2021, the Veteran's attorney submitted a release for VA to obtain records from Dr. B.L., Dr. K.K, and the Sleep Health Center. He wrote "those records are pertinent to the [V]eteran's sleep apnea claim before the Board." In late-August 2021, VA received some records from the Sleep Health Center; efforts to obtain outstanding private treatment records from Drs. B.L. and K.K. appear to be ongoing. See September 10, 2021 VA 27-0820 Reports of General Information; see also September 14, 2021 VA correspondence. The matter is REMANDED for the following: 1. Secure for the record updated (to the present, all not already associated with the record) complete clinical records of VA evaluations and treatment the Veteran has received for sleep apnea. 2. Secure for the record complete records of private treatment identified by the Veteran, including specifically records from Dr. B.L., Dr. K.K., and the Sleep Health Center (as identified in an August 2021 VA Form 21-4142a). 3. When the development requested above is completed, arrange for the Veteran's record to be returned to the April 2021 VA (fee basis) sleep apnea examiner for review and an addendum medical opinion regarding the likely etiology of the Veteran's OSA. [If that provider is unavailable or unable to provide an addendum opinion sought, arrange for the record to be forwarded to another appropriate clinician for review and the opinions sought. If that occurs, and further examination of the Veteran is deemed necessary, such should be arranged.] The Veteran's entire record (to include this Remand, the April 2021 examination report/opinion, and any records received pursuant to the development ordered above) must be reviewed by the provider. The consulting provider should respond to the following: (a) Is it at least as likely as not (a 50% or greater probability) that the Veteran's OSA is etiologically related to his service? The rationale provided must address: Whether the Veteran's documented reports of fatigue and feeling "dazed" in service represent the initial manifestations of the Veteran's current OSA; The Veteran's lay reports of snoring since 1995; and, The two buddy statements which report that the Veteran snored loud during trips to Las Vegan in 1992 and 1993, and as a housemate from 1991 to 2000 (i.e., snored loud during periods of his active duty service). The consulting provider is advised that a medical opinion based solely on the absence of documentation of snoring/OSA in the STRs will be rejected as inadequate. The opinion must address the lay statements of record, which the Board previously indicated are to be considered credible for the purpose of the opinions sought. (b) If the response to (a) is No, identify the etiology of the Veteran's OSA that is considered to be more likely (and explain why that is so). The consulting provider must include rationale with all opinions, citing to supporting factual data and medical principles as deemed appropriate. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dupont, 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.