Citation Nr: 21069338 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 14-34 771A DATE: November 18, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea, including as due to service-connected hypertension or diabetes mellitus, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1974 to June 1996. This appeal has a long procedural history. It comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision which denied, in pertinent part, a claim of service connection for obstructive sleep apnea. A videoconference Board hearing was held in June 2017 before a Veterans Law Judge (VLJ) and a copy of the hearing transcript has been added to the record. The Veteran was advised in October 2021 correspondence that the VLJ who held this hearing was no longer at the Board and given the opportunity to receive another hearing before a different VLJ. He did not respond. Thus, his Board hearing request is deemed satisfied. See 38 C.F.R. § 20.704 (2020). Having reviewed the record evidence, to include the Veteran's hearing testimony, the Board finds that the issue on appeal should be characterized as stated above. In March 2018, January 2020, and April 2021, the Board remanded this appeal to the Agency of Original Jurisdiction (AOJ) for additional development. Having reviewed the record evidence, and although the Board is reluctant to contribute to "the hamster-wheel reputation of Veterans law" by remanding this claim again, additional development is required before the underlying claim can be adjudicated on the merits. Cf. Coburn v. Nicholson, 19 Vet. App. 427, 434 (2006) (Lance, J., dissenting) (finding that repeated remands "perpetuate the hamster-wheel reputation of Veterans law"). In April 2021, the Board remanded this appeal for a new VA medical opinion. The Board asked the examiner on remand to consider lay statements from the Veteran, his wife, and a fellow soldier, who spoke to symptoms observed of the Veteran during his time in service, to include daytime tiredness, snoring, choking, gasping for air, and cessation of breath during sleep. In the remand directive, the Board stated, "In offering the opinion, the examiner is asked to consider and comment on the significance of the lay statements of the Veteran, his wife, and a fellow soldier (who served as a medic), to include observations of daytime tiredness, snoring, choking, gasping for air and cessation of breath during sleep." In a June 2021 opinion, the VA examiner opined that it was less likely than not that the Veteran's obstructive sleep apnea is related to active service. The rationale for this opinion was based on a review of the claims file. The rationale also was: [O]n his retirement medical history, he denied a history of shortness of breath, chronic cough, or frequent trouble sleeping. If he was having difficulty sleeping, snoring, coughing or shortness of breath as per lay statements made by his wife and fellow service member[,] he failed to report such symptoms on his retirement exam. Furthermore, although snoring is often a symptom of sleep apnea[,] snoring alone would not cause an anatomical obstruction in the airway. On the Veteran's separation physical he weighed 230lbs; on the day of his sleep study, in 2010[,] approximately 14 years after separation[,] he had gained 50lbs weighing 280lbs. The biggest risk factor in the development of sleep apnea is obesity; therefore the Veteran's sleep apnea is likely secondary to his obesity. Per the medical evidence, the onset of his sleep apnea likely incurred after separation from active duty. Having review this opinion, the Board finds that it complies substantially with prior remand directives requesting that a VA clinician address the clinical significance of the Veteran's obstructive sleep apnea symptoms reported by others. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Board nevertheless finds that remand is appropriate to address the Veteran's alternative theory of entitlement, i.e., whether sleep apnea is secondary to his service-connected hypertension or diabetes mellitus. The Board previously found that the April 2020 VA examiner provided a negative nexus opinion with regard to the secondary service connection claim but there was no supporting rationale for this opinion. Thus, the Board finds that, on remand, another opinion should be obtained which addresses this matter. See also Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004), and Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (explaining that the Board must consider all potential theories of entitlement raised by the evidence). The matters are REMANDED for the following action: 1. Forward the claims file and a copy of this REMAND to the clinician who conducted the June 2021 VA sleep apnea Disability Benefits Questionnaire (DBQ) or another appropriate clinician for an addendum opinion concerning the nature and etiology of the Veteran's obstructive sleep apnea. The Veteran does not need to report for examination. Based on a review of the claims file, the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's service-connected hypertension or his service-connected diabetes mellitus caused or aggravated his obstructive sleep apnea. A rationale must be provided for any opinion(s) expressed. If any requested opinion(s) cannot be provided without resorting to speculation, then the clinician must explain why this is so. The clinician is advised not to review or rely upon an April 2020 VA medical nexus opinion in preparing his or her own opinion(s). 2. Readjudicate the appeal. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Jiggetts 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.