Citation Nr: 21063532 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 15-18 208 DATE: October 14, 2021 REMANDED Service connection for obstructive sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1963 to July 1987. The Veteran died in March 2020. His surviving spouse has been substituted as the Appellant. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 1. Service connection for obstructive sleep apnea is remanded. While the Board sincerely regrets the additional delay, unfortunately, another remand is required. Although opinions have been rendered on the issue of service connection for sleep apnea, both as directly related to service and as secondary to hypertension, the opinions do not adequately address the issue of direct service connection. Specifically, the October 2019 and May 2021 VA medical opinions do not adequately explain why the symptoms the Veteran reported in service are not manifestations of sleep apnea in service. As such, there has not been substantial compliance with the Board's April 2021 VA remand directives for a medical opinion. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the April 2021 Board remand, the Board instructed the examiner to accept as true that the Veteran experienced problems sleeping, gasping for air, wheezing, and feeling fatigued during service. Filing an amicus brief in September 2021 on behalf of the Appellant and having previously represented the Veteran, The American Legion pointed to a VA/DoD Clinical Practice Guideline for the Management of Chronic Insomnia Disorder and Obstructive Sleep Apnea in which diagnostic criteria for sleep apnea included: complaints of sleepiness, nonrestorative sleep, fatigue, or insomnia symptoms; and waking with breath holding, gasping, or choking. The October 2019 VA medical opinion relied upon the silence in service treatment records and silence in the VA compensation application at separation and the inaccurate fact that the first diagnosis of sleep apnea was in 2012, rather than 2000. Pursuant to Board remand, the May 2021 medical opinion held that the Veteran was not qualified to make medical diagnosis or to discuss medical nexus and that the preponderance of medical evidence and expertise reveals the cause of OSA to be a developmentally narrow oropharyngeal airway, often with superimposed elevation of BMI (creating encroachment of airway with fatty soft tissues) and/or natural aging (encroachment of airway with floppy soft tissues). While the May 2021 evaluator cites medical literature for risk factors, the evaluator does not apply these risk factors to the Veteran's case. The evaluator also appears to attribute a developmentally narrow oropharyngeal airway to the Veteran without pointing to evidence for this basis. Since the medical opinion relies heavily on this as a cause of sleep apnea, if the Veteran did not have such a developmentally narrow oropharyngeal airway, the opinion is inadequate. Most importantly, however, the evaluator does not address why or why not the symptoms of problems sleeping, gasping for air, wheezing, and feeling fatigued during service are manifestations of the Veteran's sleep apnea. Instead, the evaluator provides a legal conclusion rather than medical reasoning. Accordingly, a new opinion is warranted. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion regarding the Veteran's sleep apnea from a qualified clinician. The clinician must review the claims file. The clinician is asked to provide a response to the following: Is sleep apnea at least as likely as not related to service, including the Veteran's reports that he experienced problems sleeping, gasping for air, wheezing, and feeling fatigued during service? The clinician is instructed to accept the foregoing reports as true. Although an independent review of the claims file is required, the clinician's attention is called to the following: a. Page 102 of the VA/DoD Clinical Practice Guideline for the Management of Chronic Insomnia Disorder and Obstructive Sleep Apnea in which diagnostic criteria for sleep apnea included complaints of sleepiness, nonrestorative sleep, fatigue, or insomnia symptoms, and waking with breath holding, gasping, or choking. b. An August 2000 private treatment record showing the Veteran was diagnosed with sleep apnea at that time. c. A May 1984 service treatment record showing a complaint of some tiredness. In providing the requested opinion, consider the Veteran's description of his in-service symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? The clinician is advised that a medical opinion that relies upon silence in the service treatment records is inadequate. The clinician must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the clinician must state this and provide a rationale for such conclusion. 2. Ensure compliance with the remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). 3. Readjudicate the claim. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Rocktashel, 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.