Citation Nr: 21073130 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 19-12 016 DATE: December 7, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to an increased evaluation in excess of 20 percent disabling for left shoulder rotator cuff syndrome with degenerative arthritis is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1983 to March 2004. This matter comes before the Board of Veterans' Appeals (Board) from an October 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. In January 2019, a VA examination was completed. See January 2019 VA Examination. The examiner noted that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event or illness as a review of the Veteran's service medical records did not contain objective evidence of OSA. While the Veteran submitted lay statements that alleged the Veteran snored and had potential apneic episodes during service, the examiner determined that this does not demonstrate that the Veteran had OSA in service. In addition, the Board notes that the Veteran testified that during active duty service, he fell asleep during the daytime while sitting at his desk, at his computer, and while reading documents. He also shared that he has felt tired and consumed caffeine from military service until the present day. See March 2021 Hearing Transcript. The Board found the Veteran's testimony to be competent and credible. This evidence of possible in-service symptoms was not of record at the previous examination. As such, the examiner did not address this. Accordingly, the Board finds that a remand is necessary in order to provide another examination with his hearing testimony regarding the etiology of his obstructive sleep apnea. 2. Entitlement to an increased evaluation in excess of 20 percent disabling for left shoulder rotator cuff syndrome with degenerative arthritis is remanded. The Veteran contends that his left shoulder rotator cuff syndrome with degenerative arthritis myositis has worsened and warrants a higher rating. In December 2018, the Veteran attended a VA shoulder and arm conditions examination. See December 2018 VA Examination. The examiner noted that the Veteran has a current diagnosis of left shoulder rotator cuff syndrome with AC joint degenerative arthritis. The Veteran shared that he experiences daily left shoulder pain, flare-ups, stiffness, grinding, decreased range of motion, and numbness from his left shoulder to left arm. Range of motion testing found flexion at 65 degrees, abduction to 60 degrees, external rotation at 45 degrees, and internal rotation at 35 degrees. Flare-up range of motion testing is noted as flexion at 65 degrees, abduction to 60 degrees, external rotation to 45 degrees, and internal rotation to 35 degrees. The most recent VA examination in connection with the Veteran's service-connected shoulder condition was conducted almost 3 years ago. At his Board Hearing in March 2021, the Veteran stated that his symptoms have worsened since his last examination. See March 2021 Hearing Transcript. Specifically, he contends that he now requires assistance completing daily tasks such as dressing himself and doing chores around the house. As the Veteran credibly contends that his symptoms have worsened since his last examination and there is no recent VA examination of record, the Board finds that a new VA examination is appropriate to assess the current severity of the Veteran's myositis. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). The matters are REMANDED for the following action: 1. Obtain an addendum opinion by a suitably qualified health care professional to determine the nature and etiology of the Veteran's sleep apnea condition. An examination of the Veteran should only be scheduled if the examiner determines one is necessary to obtain the requested opinions. After review of the claims file, including his STRs, hearing testimony, and January 2019 VA examination report, the examiner should respond to the following question: (a) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's obstructive sleep apnea condition is related to service? The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. The examiner is advised that the Veteran is competent to report symptoms and that his lay observations must be considered in formulating the requested opinions. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should indicate this in the examination report and provide a rationale for that determination. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 2. Schedule a VA compensation examination to determine the current nature and severity of service connected left shoulder rotator cuff syndrome with degenerative arthritis. The electronic claims file must be reviewed in conjunction with the examination. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted, and the results included in the examination report. The examiner should consider and address the Veteran's contentions that he experiences flare-ups. A complete rationale should be given for all opinions and conclusions rendered. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). (Continued on the next page) (Continued on the next page) G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Schmidt 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.