Citation Nr: A21016567 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 191028-40223 DATE: October 12, 2021 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected tinnitus, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1975 to October 1983 and October 1990 to September 1992 with additional service in the Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in September 2019 by a Department of Veterans Affairs (VA) Regional Office under the modernized appeals system known as the Appeals Modernization Act (AMA). In October 2019, the Veteran timely appealed such rating decision to the Board by submitting a Decision Review Request: Board Appeal (Notice of Disagreement) (VA Form 10182) and requested direct review of the evidence considered by the Agency of Original Jurisdiction (AOJ). Thus, the Board's review herein is limited to the evidence of record at the time of the issuance of the rating decision on September 13, 2019. 38 C.F.R. § 20.301. The Board notes that, in the September 2019 rating decision, the AOJ found that new and relevant evidence had been received to readjudicate the Veteran's claim for service connection for sleep apnea. Therefore, as the Board is bound by such favorable finding, the Veteran's claim will be reviewed on a de novo basis herein. 38 C.F.R. § 3.104(c). Entitlement to service connection for sleep apnea, to include as secondary to service-connected tinnitus. The Veteran contends that his currently diagnosed sleep apnea began during service or, in the alternative, is caused or aggravated by his service-connected tinnitus. In regard to the former theory of entitlement, the Veteran reported the onset of symptoms he believes were indicative of sleep apnea during serving beginning in approximately 1990, to include daytime tiredness as he would fall asleep during the day despite getting eight hours of sleep and snoring as reported by fellow service members. As pertinent to the latter theory of entitlement, the Veteran alleges that his tinnitus caused or aggravated his sleep apnea as it made it difficult for him to fall asleep. As an initial matter, the Board notes that the Veteran has a current diagnosis of sleep apnea as evidenced by a March 2015 sleep study. Further, while his available service treatment records are negative for any complaints, treatment, or diagnosis referable to sleep apnea, D.B., a colleague and friend of the Veteran, reported in a July 2017 statement that, in 1994, shortly after the Veteran was discharged from active duty, he witnessed him deeply snoring while sleeping. He further stated that he stopped breathing in his sleep and he had to wake the Veteran in order to make sure he was okay. Additionally, in a July 2017 statement, the Veteran's spouse reported that his sleep apnea symptoms began in the mid-1980's. She stated that she recalls the Veteran was issued a non-judicial punishment under the Uniform Code of Military Justice for falling asleep during the day while performing his military duties. She further stated that, in 1990, when the Veteran was working as a military recruiter, he was having trouble staying awake while driving his government issued vehicle and had to be released from the assignment. Consequently, in light of the Veteran's current diagnosis of sleep apnea, the reports of relevant symptomatology during and since service, and the allegation that his service-connected tinnitus caused or aggravated such disorder, the Board finds that a remand is necessary in correct a pre-decisional duty to assist error by obtaining an opinion addressing the etiology of his sleep apnea as required by McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: Forward the record, to include a copy of this remand, to an appropriate VA examiner so as to obtain an opinion addressing the etiology of the Veteran's sleep apnea. Following a review of the record, the examiner should address the following inquiries: (A) Is it at least as likely as not (i.e. a 50 percent or greater probability) that the Veteran's sleep apnea, diagnosed in March 2015, had its onset in, or is otherwise related to, his periods of active duty from July 1975 to October 1983 and October 1990 to September 1992, to include his reports of daytime tiredness and snoring therein? In offering such opinion, the examiner is advised that the sole basis for an unfavorable opinion may not be the fact that the Veteran's available service treatment records are negative for any relevant complaints, treatment, or diagnosis. Further, he or she should consider the Veteran's statements that he experienced daytime tiredness and snoring beginning in service in approximately 1990, D.B.'s July 2017 statement that he witnessed the Veteran snoring and gasping for air during sleep as early as 1994, and his spouse's July 2017 statement that he experienced daytime tiredness in the mid-1980's and 1990. (B) Is it at least as likely as not (i.e. a 50 percent or greater possibility) that the Veteran's sleep apnea, diagnosed in March 2015, is caused or aggravated by, his service-connected tinnitus, to include as a result of difficulty falling asleep. For any aggravation found, the clinician should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Allison Payne 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.