Citation Nr: 21062338 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 15-46 792 DATE: October 7, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA), insomnia, sleep disturbances, and/or fatigue is REMANDED. REASONS FOR REMAND The Veteran served honorably on active duty in the United States Army from March 1961 to March 1964, from November 1990 to October 1991, and from February 2000 to January 2004. The Veteran's certificates of release from active duty reveal that his service ribbons include the Vietnam Service and Southwest Asia Service Medals. In addition to the active duty service, the Veteran served in the United States Army Reserves. Upon review of the record, the Board concludes that further evidentiary development is necessary. Although the Board sincerely regrets this delay and is appreciative of the Veteran's service to his country, a remand is necessary to ensure VA provides the Veteran with appropriate assistance in developing his claim prior to final adjudication. Entitlement to service connection for obstructive sleep apnea (OSA), insomnia, sleep disturbances, and/or fatigue is remanded. In August 2011, the Veteran submitted a VA Form 21-4138. Therein, the Veteran re-initiated a claim for service connection for OSA, which was previously denied by the agency of original jurisdiction (AOJ) as a claim for sleep disturbances and fatigue. In June 1995, a Neuropsychological Test Report was generated at Sheppard Air Force Base. Therein, it was relayed that, "problems reported after his experiences in the Persian Gulf from February to September 1991. . . . He also complains of . . . sleep disturbance. He denies any exposure to biological or chemical agents but did say he was in an area that had burning oil fields. (emphasis added)" In September 2004, the Veteran underwent a VA respiratory examination. In the resultant report, the examiner diagnosed dyspnea. The examiner relayed that, "(h)e has atypical dyspnea on exertion consistently seen with several of the individuals who were in the Gulf War. He does have some mild evidence of obstruction on the residual volume of the pulmonary function test." The examiner did not address sleep disturbance and/or sleep apnea; however, the examiner did note that, "it is essentially normal PFT although there is mild hyperinflation with residual volume suggesting there is some obstruction." In May 2007 and October 2015, the Veteran's service treatment records (STRs) were associated with the claims file. The Board observes that, during periods of non-active service, the Veteran reported "frequent trouble sleeping" in the 1995 and January 2000 Reports of Medical History. In January 2000, the military examiner noted that the Veteran could fall asleep, but he would wake up and was unable to go back to sleep. In August 2011, the Veteran's treatment notations at the Central Texas HCS were associated with the claims file. Therein, it was reported that a February 2008 sleep study revealed that the Veteran endured mild obstructive sleep apnea syndrome, more prominent during REM sleep and while supine. In September 2011, a provider supplied a diagnosis for dyssomnia. In April 2017, a statement from the Veteran's counsel was associated with the claims file. Therein, counsel relayed that, "on 29 June 1995 . . . as part of the Persian Gulf Study, it was indicated the Veteran had 'chronic fatigue, sleep disorder/complaints . . ..'" In April 2017, the Veteran supplied sworn testimony to the undersigned Veterans' Law Judge (VLJ). At that time, the Veteran's attorney relayed that, "there's a consultation sheet in there as part of his Persian Gulf study where they requested a sleep study because it said that he was complaining of chronic fatigue, sleep disorder . . .." The attorney also relayed that, "(i)t could be going back to the Persian Gulf studies that he had in '95, sleep apnea was shown at that time, but not severe enough for a CPAP following, um, Desert Storm." In September 2018, the Board considered the Veteran's claim for service connection for sleep disturbances and fatigue. At that time, the Board reopened the Veteran's claim for service connection. The Board observed that the evidence of record supported the first element of a service connection claim, a current OSA disability. The Board also observed that the September 2004 VA examiner suggested an etiological link for a respiratory obstruction. However, the examiner did not address sleep, sleep apnea, or whether the respiratory obstruction was a factor for the Veteran's diagnosed OSA. The Board remanded the claim to the agency of original jurisdiction (AOJ) for additional development. In May 2019, a notation was generated at the Olin E. Teague Veteran Center. At that time, the provider noted that the Veteran was diagnosed with OSA, and he was receiving a new PAP machine. In an April 2019 addendum, a provider relayed that, "he is under pulmonary for his sleep apnea which is ALREADY diagnosed, and he is using CPAP machine." In May 2019, the Veteran underwent an initial posttraumatic stress disorder (PTSD) examination. Afterward, the examiner opined that, " (t)he veteran put in a claim of obstructive sleep apnea and it was diagnosed but is not service connected. Any additional sleep difficulties are considered diagnosable but are likely related to a medically unexplained chronic multi-symptom illnesses of unknown origin and these disorders appear to be related to conditions that are outside of my expertise as a mental health professional." In July 2019, the Veteran underwent a VA examination that considered the nature and etiology of any currently endured OSA. After review of the claims file, the examiner noted that the Veteran was diagnosed and treated for mild OSA, but the Veteran's symptoms did not satisfy the VA diagnostic criteria for OSA. Additionally, the examiner noted that the Veteran was supplied a CPAP machine after a February 2008 sleep study. In August 2020, the Board considered the Veteran's claim for service connection for OSA, insomnia, sleep disturbances, and/or fatigue. At that time, the Board remanded the claim to the AOJ for an addendum opinion regarding the etiology of any current OSA, insomnia, sleep disturbances, and/or fatigue endured by the Veteran. In October 2020, the Veteran underwent a VA examination that addressed the nature and etiology of any currently endured OSA. In the resultant report, the examiner opined that the Veteran did not have or ever have OSA. However, in the medical history, the examiner noted that mild OSA was diagnosed after a sleep study in February 2008. The examiner opined that the Veteran's diagnosed OSA was less likely than not (less than 50 percent probability) incurred in or caused by service, to include the Veteran's service and chemical exposure in the Persian Gulf. The examiner also opined that the Veteran's diagnosed OSA was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected posttraumatic stress disorder (PTSD) disability. The examiner supplied the following rationale: "Veteran does not have Obstructive Sleep Apnea. Veteran instead has sleep disturbances which are multifactorial in origin." In October 2020, a different VA examiner opined that the Veteran's diagnosed OSA was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner also opined that the Veteran's diagnosed OSA was less likely than not (less than 50 percent probability) proximately due to or the result of a service-connected condition. The examiner relayed that the Veteran's claimed conditions were the symptoms of PTSD and OSA and did not warrant separate diagnoses. In April 2021, the Board addressed the Veteran's claim for service connection for obstructive sleep apnea (OSA), insomnia, sleep disturbances, and/or fatigue. At that time, the Board remanded the claim in order for the AOJ to consider and address additional medical records that were added to the claims file after it issued a supplemental statement of the case (SSOC) in December 2020. The Board notes that the July 2019 and October 2020 VA examiners reported that the Veteran did not currently endure OSA. However, the Board also notes that, at various points during the claim period, diagnoses for OSA and dyssomnia were reported. The Board observes that the requirement of a current disability is satisfied when the Veteran has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, and that the claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Ultimately, the Board concludes that the July 2019 and October 2020 VA examiners supplied a cut-and-paste recitation of the evidence without a proper analysis or rationale for their negative opinions. Consequently, the Board concludes that VA examination reports of record are not adequate for the analysis of the Veteran's claim for service connection for OSA, insomnia, sleep disturbances, and/or fatigue. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that a probative medical opinion will be "factually accurate, fully articulated, (with) sound reasoning for the conclusion"). See also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). On remand, the AOJ must secure an adequate VA examination report that addresses the etiology of the Veteran's OSA, insomnia, sleep disturbances, and/or fatigue. Consequently, the matter is REMANDED to the agency of original jurisdiction (AOJ) for the following action: 1. The Veteran should be scheduled for a VA examination, with an appropriate physician, to determine the etiology of the diagnosed OSA, insomnia, sleep disturbance, and/or fatigue. The claims file, including a copy of this remand, must be made available to and reviewed by the examiner. The examiner should characterize the Veteran's claimed disability/disabilities as belonging to one of four disability patterns: (1) undiagnosed illness, (2) a diagnosable, but medically unexplained chronic multi-symptom illness of unknown etiology, (3) a diagnosable chronic, multi-symptom illness with a partially explained etiology, or (4) a disease with a clear and specific etiology. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current disability is related to U.S. Army service, to include the Veteran's service and chemical exposure in the Persian Gulf. The examiner must provide a complete rationale for all opinions expressed. As part of this rationale, the examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). A discussion of the facts and medical principles involved would be of considerable assistance to the Board. Based upon a review of the entirety of the claims file, the history presented by the Veteran, and the examination results, the examiner is requested to provide an opinion as to the following questions: a) Is it at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran's diagnosed disability / disabilities had its/their clinical onset during military service, or is otherwise related to his active duty service? b) Is at least as likely as not (i.e. a 50 percent or greater probability) that the Veteran's diagnosed disability / disabilities are part of a diagnosable, but medically unexplained, chronic multi-symptom illness of unknown etiology? c) Is it at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran's diagnosed disability / disabilities was / were either (i) caused by or (ii) aggravated by any of the Veteran's service-connected disabilities, to include PTSD? Governing regulations provide that service connection is permissible on a secondary basis if a claimed disability is proximately due, the result of, or aggravated by a service-connected disability. See 38C.F.R. § 3.310 The term aggravation is defined as a chronic and permanent worsening of the underlying condition beyond its natural progression versus just a temporary or intermittent flare-up of symptoms. If the examiner determines there has been aggravation, he or she should try and quantify the amount of additional disability the Veteran had, above and beyond that he had prior to the aggravation. It should be noted that the Veteran, is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a clinical basis to support or doubt the lay history provided by the Veteran, the examiner should provide a fully reasoned explanation. Explanations for all opinions must be provided. While providing the requested rationale, the examiner is asked to cite to the pertinent evidence of record, including clinical records and the Veteran's statements regarding the onset of the obstructive sleep apnea (OSA), insomnia, sleep disturbance(s), and/or fatigue symptoms. 2. The AOJ must ensure that the examination report requested above is in compliance with the directives of this remand. If the report or opinion is deficient in any manner, the AOJ must implement corrective procedures at once. 3. Thereafter, the AOJ should consider all of the evidence of record and readjudicate the claim for service connection for OSA, insomnia, sleep disturbances, and/or fatigue. If the benefit sought is not granted, the AOJ must then issue a Supplemental Statement of the Case (SSOC) and allow the Veteran and his attorney an opportunity to respond. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board RLBJ, 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.