Citation Nr: 21074299 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 14-19 653 DATE: December 14, 2021 ISSUE Entitlement to service connection for obstructive sleep apnea. REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from February 1983 to February 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an June 2011 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In October 2015, the Veteran and her husband, R.H., testified at a Travel Board before the undersigned Veterans Law Judge sitting at the RO in Montgomery, Alabama. A transcript of the hearing is associated with the claims file. This matter was previously remanded in April 2016 and August 2017 for further development. In January 2020 the Board denied the Veteran's claim for service connection for obstructive sleep apnea. The Veteran appealed the January 2020 Board decision to the United States Court of Appeals for Veterans Claims (Court). In July 2021, the Court granted a Joint Motion for Remand (JMR), vacating the Board's January 2020 decision. The JMR found that the Board's January 2020 decision erred when it failed to provide the Veteran with an adequate examination which properly considered all of the evidence of record when addressing entitlement to service connection for obstructive sleep apnea. Additionally, the parties agreed that the Board erred in failing to provide adequate reasons or bases that properly address the evidence of record, including the Veteran's in-service reports of sleep symptomatology. After vacating the Board's decision, the case was remanded pursuant to 38U.S.C. §7252 (a) for readjudication of the issue of entitlement to an increased rating, consistent with the JMR. Consistent with the foregoing JMR the Board finds that evidentiary development is still required before the claim for service connection on appeal can be adjudicated. Please note that the case has been advanced on the docket pursuant to 38 C.F.R. § 20.900 (c) Entitlement to service connection for obstructive sleep apnea is remanded. The Veteran contends that her obstructive sleep apnea (OSA) began in and has continued since active- duty service. She has testified during her October 2015 Board hearing that she began to experience symptoms such as loud snoring, excessive tiredness and not sleeping through the night since discharge from service. The Veteran's husband, R.H., provided lay statements in January 2011 and August 2019 reporting that the Veteran snored loudly for years, and he did not attribute these symptoms to sleep apnea until her diagnosis. As further discussed below, the Board finds that an adequate medical opinion must be obtained upon remand concerning the Veteran's claim on appeal. The most recent medical opinion of record for the Veteran's OSA was completed in March 2018. At that time the examiner opined that it was less likely than not that the Veteran's OSA was related to her active- duty service. The examiner explained that although she had considered the Veteran and her spouse's lay statements, the Veteran was not qualified to make a self-diagnosis of OSA based on her description of her symptoms. The examiner also noted that the Veteran's service records were silent for complaints related to any kind of sleep condition. Finally, the examiner explained that several risk factors, including genetic predisposition, obesity, short and large diameter neck, smoking, alcohol consumption, and the use of certain medications can be attributed to the development of sleep apnea. The Board denied the Veteran's claim of service connection in January 2020 in reliance on the March 2018 VA medical opinion. Pursuant to the JMR, the parties agreed that the medical opinion was inadequate because the examiner improperly rejected the lay evidence of record based on the lack of contemporaneous medical evidence. The examiner also found that the Veteran's STRs were silent for complaints of sleep issues or suggestions of sleep apnea. However, as the JMR points out, the Veteran's January 1986 Report of Medical History completed at separation indicates that she reported headaches and frequent trouble sleeping. Additionally, in the JMR the parties agreed that the examiner failed to provide a full rationale for her opinion. Specifically, although the examiner lists several risk factors for OSA she fails to indicate whether the Veteran has any of those risk factors. Finally, as discussed in the JMR the issue has been raised by the record as to whether the Veteran's sleep apnea is related to her service-connected psychiatric disorder. As the parties agreed, the Board in the January 2020 decision noted that the Veteran's sleep issues have been linked to her psychiatric disorder. However, there is no opinion on record addressing whether the Veteran's OSA is caused by or aggravated by her service-connected psychiatric disorder. Thus, after consideration of the joint motion for remand, the Board finds that an addendum medical opinion is necessary to address the etiology of the Veteran's obstructive sleep apnea as well as to properly consider all of the medical and lay evidence of record. The Board finds that this additional development is required for the Board to make a decision on this appeal, and to adequately address CAVC Remand directives discussed above. Accordingly, the Veteran's claim must be remanded for an addendum medical opinion pursuant to the CAVC's directives. The matters are REMANDED for the following action: 1. Obtain any outstanding and relevant private and/or VA treatment records. Should such exist, associate such with the claims file. 2. After undertaking the development listed above to the extent possible, obtain an addendum opinion from a new VA examiner specializing in sleep disorders who has not previously provided an opinion in this case to determine the etiology of the Veteran's sleep apnea. The electronic claims file, to include the Veteran's service treatment records, lay statements and testimonies, and treatment records, must be reviewed by the examiner, and a note that it was reviewed should be included in the report. If the examiner determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. The examiner is requested to address the following: (a) Whether it is at least as likely as not (50 percent or greater likelihood) that the Veteran's OSA disability had its onset in service or is otherwise related to service. When considering this question, the examiner is to consider all lay statements of record carefully, VA treatment records, and private treatment records and evaluations. In rendering the requested opinion, the examiner is instructed to specifically acknowledge and discuss the Veteran and her husband's assertions, as contained in January 2011 and February 2011 statements, and in the October 2015 Travel Board hearing transcript. The examiner should view the Veteran as a reliable historian as to her service and her husband's report of her activities in service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377(Fed. Cir. 2007) The examiner is also asked to consider and specifically discuss Veteran's January 1986 Report of Medical History completed at the time of her separation from service which indicates that she reported headaches and frequent trouble sleeping. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's OSA disability was caused or aggravated by the Veteran's service-connected PTSD with depression. With respect to the question of whether any aggravation was observed, the examiner is requested to address whether there has been any worsening, no matter how incremental, of the Veteran's OSA. The examiner must also remain mindful that a recent precedent case clarified that secondary service connection does not require "permanent" worsening of the condition being claimed by the service-connected disability and requires considering whether there has been any worsening, no matter how incremental, so even if not above and beyond the condition's natural progression. See Ward v. Wilkie, 31 Vet. App. 233 (2019). (c) If aggravation is found, the examiner should address the following medical issues to the extent possible: (1) the baseline manifestations of the Veteran's disabilities found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately caused by the service-connected disability. The examiner is reminded that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). A significant lapse in time between service and post-service medical treatment may be considered a factor in the analysis. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). A detailed rationale for all opinions must be provided. 3. Thereafter, readjudicate the issue on appeal as noted above. If the determination remains unfavorable to the Veteran, she and her representative should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and her representative should be afforded the applicable time period to respond. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. It further is reiterated that this matter has been advanced on the Board's docket. 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c). Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Nettey, 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.