Citation Nr: 21066449 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 14-08 772 DATE: November 1, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to service connection for a heart disability is remanded. REASONS FOR REMAND The Veteran had active service in the Army from June 1976 to July 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2017, the Veteran presented testimony in a videoconference hearing before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims folder. In a February 2020 decision, the Board denied service connection for heart disability and OSA and remanded the issue of service connection for a skin condition, to include "jungle rot" (previously characterized as chloracne). The Veteran appealed the February 2020 decision to the United States Court of Appeals for Veterans Claims (Court). In July 2021, the Court, pursuant to a Joint Motion for Partial Remand (JMPR), vacated the Board's decision regarding the issue of service connection for heart disability and OSA and remanded these matters to the Board. Hence, the issues are before the Board for appellate consideration. During the pendency of the appeal, in a July 2020 rating decision, service connection was granted for recurrent pseudofolliculitis barbae with xerosis cutis, onychomycosis, and dermatophytosis diffuse with tinea cruris with an evaluation of 60 percent effective July 27, 2012. Because the Veteran was granted service connection for this disability and he has not disagreed with the effective date or disability rating, the issue of service connection for skin condition is no longer on appeal. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). 1. Entitlement to service connection for OSA is remanded. The Veteran contends that his OSA is related to service. See July 2012 statement. A September 2012 VA examiner opined that the Veteran's OSA is not related to service because there was no evidence of symptoms consistent with sleep apnea in service treatment records, as it was noted that the Veteran was separated from service in 1984 and diagnosed with sleep apnea in 2010. The examiner noted the May 1976 in-service report of insomnia and a review of the July 2012 buddy statement but found no nexus to service. A June 2019 VA examiner opined that the Veteran's current OSA is not related to his military service. The examiner further noted that the Veteran gained significant weight post-service, from 162 pounds to 199 pounds, and was likely the cause for OSA; however, it was less likely than not related to service as his weight gain occurred after service. The examiner also acknowledged the July 2012 buddy statement but indicated that loud snoring is not objective evidence of OSA. In light of the points raised in the JMPR, the Board finds that further action is warranted in connection with the claim. As an initial matter, the parties to the JMPR noted that the Board relied on the September 2012 and June 2019 VA examinations, but the examiners did not provide adequate rationale for their opinions and failed to reconcile such opinions with the July 2012 buddy statement regarding severe snoring and difficulty breathing since service or "headaches in the morning with daytime sleeping." As such, the Board finds that a remand is necessary to obtain an addendum opinion to determine whether the Veteran's OSA is directly related to service. 2. Entitlement to service connection for a heart disability is remanded. The Veteran contends that his heart disability is related to service. A June 2018 VA examination was conducted and confirmed a diagnosis for CAD, congestive heart failure, and non-ST-elevation myocardial infarction (NSTEMI). The examiner opined that the evidence of record was negative for any chest pains, abnormal electrocardiogram (EKG), and diagnosis or treatment for any heart conditions in service; therefore, the Veteran's current heart condition was less likely than not related to service. A June 2019 VA examiner opined that it was less likely than not that the Veteran's current heart disability was incurred in or caused by service. The examiner cited to his review of available service treatment records and did not find any clinical diagnosis of heart disease, symptoms of such, or precursors to heart disease while in active service. The examiner noted that the Veteran was found to have coronary artery disease in 2008 requiring bypass surgery and subsequent to the surgery developed supraventricular heart rhythm problems requiring ablation. The examiner noted that the Veteran's risk factors for developing coronary artery disease were cigarette smoking, hypertension, hyperlipidemia, substance abuse and male sex. He reiterated that there was no linkage of the Veteran's current cardiac conditions (based on current records) is established to his active service. Similarly, the parties to the JMPR noted that the Board relied on the June 2018 and June 2019 VA examinations which were inadequate as well. The parties agreed that the June 2018 examiner did not reconcile the negative opinion with symptoms reported on the examination, including shortness of breath, racing heart, and reports that he was told he had irregular heartbeats during active service between 1979 to 1982. Likewise, the June 2019 examiner failed to consider the Veteran's reports of fainting while running in 1979 and irregular heartbeats. As such, the Board finds that a remand is necessary to obtain an addendum opinion to determine whether the Veteran's heart disability is directly related to service. The Court also noted that the Board remanded the issues in July 2017 and requested all outstanding medical treatment records, to include treatments for a heart condition at a military hospital during service, but that in an April 2018 correspondence the Veteran clarified that he received treatments at Silas B. Hayes Hospital in Fort Ord between 1979 to 1983 and VAMC Memphis from 1984 to 2004. It is unclear whether such development was taken to obtain these records. As such, on remand the RO should make attempts to obtain these records. The matters are REMANDED for the following actions: 1. With any necessary assistance from the Veteran, obtain all outstanding VA and/or private treatment records, to include Silas B. Hayes Hospital in Fort Ord between 1979 to 1983 and VAMC Memphis from 1984 to 2000. All efforts to obtain such records should be documented in the claims file. 2. Obtain an addendum opinion from an appropriate clinician to determine the nature and etiology of the claimed OSA. The clinician providing the opinions must be provided access to the electronic claims file and indicate review of the file in the examination report. If examination of the Veteran is necessary, such should be arranged. The examiner must address whether it is at least as likely as not (50 percent probability or more) that the Veteran's OSA had its onset during service or is otherwise related to Veteran's active service. The examiner must address the Veteran's contentions and buddy statements as to severe snoring, difficulty breathing almost every night, and morning headaches during service and reconcile these statements with any negative opinion. The examiner must provide a rationale in support of all opinions provided. If the examiner cannot provide the opinion without conducting an examination of the Veteran, then an examination must be scheduled. If any opinion cannot be provided without resorting to speculation, the examiner must explain why this is so. 3. Obtain an addendum opinion from an appropriate clinician to determine the nature and etiology of the claimed heart disability. The clinician providing the opinions must be provided access to the electronic claims file and indicate review of the file in the examination report. If examination of the Veteran is necessary, such should be arranged. The examiner must address whether it is at least as likely as not (50 percent probability or more) that the Veteran's heart disability had its onset during service or is otherwise related to Veteran's active service. The examiner must address the Veteran's reports for shortness of breath, racing heart, and reports for irregular heartbeats during active service, and reconcile these statements with any negative opinion. The examiner must provide a rationale in support of all opinions provided. If the examiner cannot provide the opinion without conducting an examination of the Veteran, then an examination must be scheduled. If any opinion cannot be provided without resorting to speculation, the examiner must explain why this is so. 4. Readjudicate the claims. If the benefit(s) sought on appeal is not granted to the Veteran's satisfaction, provide the Veteran and his representative with a supplemental statement of the case and afford them the requisite opportunity to respond before the case is returned to the Board for further appellate action. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. Asfaw, 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.