Citation Nr: 21061792 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 15-23 229A DATE: October 5, 2021 REMANDED Service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1965 to December 1968. This matter originally came before the Board of Veterans' Appeals (Board) from an August 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. This matter was remanded by the Board for further development in July 2018. An August 2020 Board decision denied the Veteran's claim. That decision was appealed to the United States Court of Appeals for Veteran Claims (CAVC), where a Joint Motion for Partial Remand (JMPR) was granted in June 2021. This matter is again before the Board and has been advanced on the docket pursuant to 38 C.F.R. § 20.902(c). Service connection for sleep apnea is remanded. The Veteran believes that service connection for sleep apnea is warranted. See November 2013 NOD. The parties to the JMPR found that a remand was needed for the Board to explain whether a July 2019 VA examination substantially complied with the Board's July 2018 remand instructions. See June 2021 CAVC Decision. The Board's July 2018 remand instructed that an addendum opinion should be provided for the Veteran's sleep apnea. The examiner was asked to opine as to whether the Veteran's current sleep apnea was related to service. The opinion required a fully reasoned rationale. See July 2018 BVA Decision. The addendum opinion took place in July 2019 and found that the Veteran's central sleep apnea was not related to service and stated that it agreed with the reasoning provided in the July 2015 VA examination. See July 2019 C&P Exam. The reasoning in the July 2015 VA examination was based upon the conclusions that, among other things, there was no evidence of sleep problems during service, the Veteran was diagnosed with obstructive sleep apnea in 2006, the Veteran was treated for obstructive sleep apnea after that diagnosis, and that the treatment for obstructive sleep apnea was successful. This led the July 2015 VA examination to find that the treatment for obstructive sleep apnea caused the Veteran's central sleep apnea. See July 2015 C&P Exam. The Board finds that the July 2019 addendum opinion did not substantially comply with the Board's July 2018 remand instructions because it failed to provide a fully reasoned rationale. See Stegall v. West, 11 Vet. App. 268 (1998). Specifically, although the July 2019 addendum opinion agreed with the July 2015 VA examination's rationale, the July 2019 addendum opinion noted information that the July 2015 VA examination did not consider. Specifically, the Veteran reported sleep problems during service, which he did not seek medical attention for until many years later; that although he was initially diagnosed with obstructive sleep apnea, it was later found to be central sleep apnea, suggesting that the obstructive sleep apnea diagnosis may have been wrong; and that upon receiving treatment for central sleep apnea, his sleep improved, suggesting that the obstructive sleep apnea treatment was not successful. By summarily agreeing with the rationale of the July 2015 VA examination without explaining why this additional information did not have an impact upon the examination's negative opinion, the July 2019 addendum opinion did not provide a fully reasoned rationale. For this reason, among others, a remand is needed for a new VA examination. The matter is REMANDED for the following action: 1. Update VA and private treatment records. VA treatment records appear current up to December 2019. 2. Schedule an appropriate VA examination for the Veteran's sleep apnea. The need for an in-person examination of the Veteran is left to the discretion of the examiner. Following a review of the claims file and a copy of this Remand, the reviewing examiner is requested to furnish an opinion with respect to the following: (A) Identify all sleep apnea related disabilities existing at any point during the appeal period (i.e., since February 2011) even if they are currently asymptomatic or have resolved during the pendency of the appeal. This should at least include a discussion of obstructive sleep apnea, central sleep apnea, complex sleep apnea, and mixed sleep apnea. (B) For each identified disability, is it at least as likely as not (a 50 percent or greater probability) that the disability had its onset in or is otherwise related to the Veteran's service, including but not limited to, conceded herbicide agent exposure? (C) For each identified disability, is it at least as likely as not (a 50 percent or greater probability) that the disability is/was caused by any or all of the Veteran's service-connected disabilities (including but not limited to medications taken for the service-connected disabilities)? (D) For each identified disability, is it at least as likely as not (a 50 percent or greater probability) that the disability is/was aggravated beyond its natural progression by any or all of the Veteran's service-connected disabilities (including but not limited to medications taken for the service-connected disabilities)? State whether there is/was a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described in terms of diagnosis, severity, and duration. The permanence of the aggravation is not at issue. (E) Is it at least as likely as not (a 50 percent or greater probability) that any or all of the Veteran's service-connected disabilities (including but not limited to medications taken for the service-connected disabilities) caused or aggravated the Veteran's obesity/being overweight including whether there is/was any incremental increase in disability or aggravation as a result of service? State whether there is/was a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described in terms of diagnosis, severity, and duration. The permanence of the aggravation is not at issue. (F) If yes, is it at least as likely as not (a 50 percent or greater probability) that the obesity/being overweight caused or aggravated any or all of the Veteran's sleep apnea related disabilities including whether there is/was any incremental increase in disability or aggravation as a result of service? State whether there is/was a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described in terms of diagnosis, severity, and duration. The permanence of the aggravation is not at issue. If yes, which ones? (G) For each identified disability that is an organic disease of the nervous system, is it at least as likely as not (a 50 percent or greater probability) that the disability manifested to a compensable degree within one year following the Veteran's separation from a period of active service? (H) For each identified disability that is an organic disease of the nervous system, is it at least as likely as not (a 50 percent or greater probability) that the disability was noted during service/within one year following the Veteran's separation from active service, with continuity of symptomatology since? In addition to the other relevant evidence of record, the reviewing examiner is asked to consider and address as appropriate the following information with a caution that this list is not a substitute for a review of the record: (1) A record showing the Veteran's service-connected disabilities. See July 2020 Rating Decision Codesheet. (2) The Veteran's report that his central sleep apnea operates under a different mechanism than obstructive sleep apnea. See August 2020 Third Party Correspondence. (3) Medical records from 2016 showing the Veteran's report that his central sleep apnea was caused by herbicide agent exposure during active service in Vietnam. Medical records from 2017 showed a central sleeping disorder and the use of a VPAP machine. Medical records from 2018 showed that the Veteran was still using "ASV" for sleep apnea. See April 2020 CAPRI. (4) The Veteran's report that according to the Mayo Clinic, central sleep apnea is a disorder in which breathing repeatedly stops and starts during sleep. It occurs because the brain does not send the proper signals to the muscles that control breathing. Further information is provided. See October 2019 Third Party Correspondence. (5) A medical record from 2019 showing a diagnosis of central sleep apnea in 2011. An October 2011 sleep study may have shown both central sleep apnea and obstructive sleep apnea. The Veteran reported a history of sleep disturbance beginning during active service. He did not report the problem during active service and did not seek medical attention for it for many years. He underwent sleep studies which diagnosed him with obstructive sleep apnea, but it was later shown to be central sleep apnea. He was transitioned to "ASV" in November 2011 and reported improved sleep. See July 2019 C&P Exam. (6) Medical records from 2006 showing a history of snoring, difficulty initiating and maintaining sleep, witnessed pauses in breathing, and daytime somnolence. There was a conclusion of severe sleep apnea and an assessment of obstructive sleep apnea. Medical records from 2013 showed a body mass index of 30. There was an impression of severe mixed obstructive and central sleep apnea. See May 2019 Medical Treatment Record. (7) Medical records from 2004 showing choking, snoring, and possible sleep apnea. Medical records from 2011 showed a "severe sleep disorder with central periodic breathing and sleep apnea diagnosed in March of 2006" and current treatment with a VPAP machine. Medical records from 2019 showed the Veteran's report that he had had sleep issues since he left service but did not pursue medical help until the symptoms worsened. Initially, it was thought that the Veteran had obstructive sleep apnea, but it turned out to be a neurological central breathing disorder. See May 2019 Medical Treatment Record. (8) Medical records from 2015 showing a body mass index of 30. See April 2019 Medical Treatment Record. (9) The Veteran's report that he had had sleep issues since he left active service but did not seek medical help until later in life when the problems became worse. The 2006 sleep study misdiagnosed the Veteran with obstructive sleep apnea. He then continued to experience sleep apnea. In 2011, it was found that the Veteran actually had a neurological central breathing disorder. See April 2019 Statement in Support of Claim. (10) The Veteran's report that he had had problems with sleep apnea for many years but did not seek medical help until later in life. See November 2015 Correspondence. (11) Medical records from 2011 showing that the Veteran's TAP appliance was not fully effective in treatment. A careful review of respiratory patterns showed that many of the hypopneas occurred in a pattern of periodic breathing, which may have indicated a central origin to the Veteran's sleep apnea, or a combination of obstructive and central apnea. "ASV" effectively treated the obstructive and central apneas and the snoring and resulted in improved subjective sleep quality. See November 2015 Medical Treatment Record. (12) Medical records from 2014 showing that the Veteran reported symptoms of excessive daytime somnolence for many years but was not diagnosed with sleep apnea until 2006. Initially, it was suspected that he had obstructive sleep apnea, but treatment did not work. Then a later test found that the Veteran might have had central or complex sleep apnea. Central and complex sleep apnea were thought to have neurologic origins, as the control mechanism that regulates breathing patterns appeared to be altered during sleep. It could not be said how long the severe sleep apnea had been present for. In many cases, it existed for many years prior to diagnosis, and in the Veteran's case, it appeared that it was first considered obstructive sleep apnea. It was possible that herbicide agent exposure may have played a role in causing the problem. Further information is provided. Id. (13) The Veteran's report that he used a VPAP machine and not a CPAP machine. The Veteran's doctor had previously stated that the Veteran did not respond well to treatment for obstructive sleep apnea because he had been misdiagnosed. See November 2015 Third Party Correspondence. (14) A medical record from 2015 showing a body mass index of 25 at the time of separation from active service. See July 2015 C&P Exam. (15) Medical records from 2015 showing that the Veteran was initially diagnosed with obstructive sleep apnea in 2006 but came to get medical help after the use of a mandibular advancement device was unsuccessful. The Veteran was then treated for central and complex sleep apnea, which was successful. See June 2015 Medical Treatment Record. (16) Medical records from 2014 showing that the polysomnogram and unsuccessful treatment history suggested that the Veteran had central or complex sleep apnea. Central and complex sleep apnea were thought to have neurologic origins. Id. (17) The Veteran's report that the (neurological) sleep apnea existed prior to leaving active service. At first, he ignored the problem. He thought that it was an emotional issue, which he was not willing to discuss. Only his spouse was aware of his restless and incomplete sleep. He did not seek treatment during service or for many years after service, until the sleep apnea worsened and became severe. He first reported the problem to his doctor in 2006. The sleep apnea was due to herbicide agent exposure during service in Vietnam. The Veteran left active service with a central breathing disorder which was not diagnosed until later in life but had haunted him ever since service. See November 2013 NOD. (18) The Veteran's spouse's report that the Veteran's service affected his health, including his sleep apnea. See July 2011 Statement in Support of Claim. (19) The Veteran's report that he slept poorly because of obstructive sleep apnea and memories of Vietnam. Id. (20) The Veteran's report that his sleep apnea had worsened over the years. See July 2011 Correspondence. (21) Service records showing an upper respiratory infection with a stuffed nose, a sore throat, and a cough. The Veteran complained about poison. See February 1969 STR Medical. (22) All other relevant lay and medical evidence. A complete rationale for all opinions offered should be provided. Address the Veteran's documented history and assertions. Address the assertions made by others. All necessary tests and studies should be conducted. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner should provide an explanation stating why. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is due to the limits of the medical community's knowledge or due to the limits of the examiner's medical knowledge. The Veteran and others are competent to attest to factual matters of which they have first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran and/or others, the examiner should provide a fully reasoned explanation. 3. Readjudicate the issue on appeal. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Dougan, 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.