Citation Nr: 21065658 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 16-00 966 DATE: October 27, 2021 REMANDED The appeal as to the claim of entitlement to service connection for obstructive sleep apnea (OSA), to include as due to herbicide exposure, and/or as due to the service-connected diabetes mellitus type II disability and/or the service-connected posttraumatic stress disorder (PTSD). REASONS FOR REMAND The Veteran had active service in the United States Army from July 1969 to January 1972. Among other commendations, he is the recipient of the Vietnam Service Medal with three Bronze Service Stars. The Veteran had additional service in the United States Air Force Reserves with active duty periods from October 2001 to September 2002 and from February 2003 to February 2004. His service was under honorable conditions. The matter is on appeal from a July 2015 rating decision. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in November 2019. In October 2020, VA notified the Veteran that a complete transcript of that hearing could not be created due to audio malfunctions and notified the Veteran of his options to schedule another hearing. In February 2021, VA received a response from that Veteran that he did not want another hearing, and asked that his claim be decided on the evidence of record. In May 2021, the Board remanded the issue on appeal for further evidentiary development. The issue has returned to the Board for further appellate consideration. In June 2021 written correspondence, the Veteran informed VA that he revoked Texas Veterans Commission (TVC) as his power of attorney (POA), and would represent himself going forward. In an October 2021 Report of General Information, the Agency of Original Jurisdiction (AOJ) noted that the Veteran had revoked TVC as his POA in June 2021. Entitlement to service connection for OSA, to include as due to herbicide exposure, and/or as due to the service-connected diabetes mellitus type II disability and/or the service-connected PTSD. The Veteran contends that his current OSA is related to his active service, to include as due to exposure to herbicide exposure. Alternatively, he contends that it is related to his service-connected diabetes mellitus type II and/or PTSD. In this regard, a November 2013 VA outpatient treatment record includes the Veteran's reported statement of "experiencing sleep difficulties for over 40 years." Post-service records include a June 2013 notation of severe OSA. The report of March 2015 and June 2021 VA examinations note a diagnosis of OSA. The Board finds the medical opinions of record inadequate to adjudicate the claim, as the May 2015 VA examiner did not address the Veteran's assertion that his OSA is related to herbicide exposure, nor did he address the claimed connection between the Veteran's service-connected PTSD and his OSA. In this regard, contemporaneous VA outpatient treatment records indicate that while the Veteran's PTSD did cause him some sleep disturbance symptoms, he was also recommended for a sleep study to assess potential sleep apnea. Likewise, the June 2016 private physician opined that diabetes mellitus type II can lead to OSA; however, the Veteran's private physician failed to provide a rationale for his conclusion. Similarly, the June 2021 VA examiner found that while there is an association between PTSD and OSA, there is no known pathophysiological connection between the two conditions; here, the examiner also failed to provide a rationale for his conclusion. In addition, the June 2021 VA examiner found that there was no evidence that the current OSA was related to the Veteran's herbicide exposure, concluding that it was not possible to make a diagnosis of OSA in the absence of a sleep study; however, the record demonstrates that a sleep study was performed in June 2013. Finally, the aforementioned examiners failed to address whether the Veteran's current OSA was aggravated by his service-connected diabetes mellitus type II disability and/or PTSD. Accordingly, an additional medical opinion is necessary to make a determination in this case. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The matter is REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim, to include updated VA outpatient treatment records. If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should clearly be documented in the record and the Veteran so notified in accordance with 38 C.F.R. § 3.159(e). All steps taken to attempt to obtain the above records should clearly be documented in the record. 2. Once the record is developed to the extent possible, all pertinent evidence of record must be made available to and reviewed by an appropriate VA physician who has not provided a prior opinion in this case. The Veteran need not appear for an examination unless deemed necessary by the physician assigned to offer an opinion. The examiner must provide an opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the current OSA, manifested during, or as a result of, active military service, to include the Veteran's confirmed herbicide exposure. If not, the physician should state a medical opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the OSA disorder was caused or permanently worsened by the service-connected diabetes mellitus type II disability and/or the service-connected PTSD. If the physician believes that an OSA disorder was permanently worsened by a service-connected disorder(s), the physician should attempt to identify the baseline level of disability that existed prior to the onset of aggravation and the extent of disability that is attributable to aggravation. In providing the opinion, the examiner must discuss the November 2013 VA outpatient treatment record that includes the Veteran's report of "experiencing sleep difficulties for over 40 years." The examiner must also discuss the contemporaneous VA outpatient treatment records, which note, that while the Veteran's PTSD did cause him some sleep disturbance symptoms, he was also recommended for a sleep study to assess potential sleep apnea. For purposes of the opinion, the examiner should assume that the Veteran is a credible historian to report on in-service and post-service symptomology he experienced. If the examiner is unable to provide any required opinion, the examiner should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. Another examination of the Veteran should only be performed if deemed necessary by the physician providing the opinions. 3. Then, the AOJ should readjudicate the issue on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he should be provided a supplemental statement of the case and an appropriate period for response before the case is returned to the Board for further appellate action B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sara Schinnerer, 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.