Citation Nr: 21074542 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 19-09 965 DATE: December 15, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1999 to June 2005. This matter comes before the Board of Veterans' Appeals (Board) from a March 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Board issued a decision that denied entitlement to service connection for obstructive sleep apnea. The Veteran appealed the denial to the U.S. Court of Appeals for Veterans Claims (CAVC). In February 2021 Order, pursuant to a Joint Motion for Remand (JMR) filed by the parties, the Court vacated and remanded the January 2020 decision for compliance with the instructions in the JMR. The case was last before the Board in June 2021 and has returned to the Board for further appellate review. 1. Entitlement to service connection for obstructive sleep apnea is remanded. In June 2021, the Board remanded the claim to obtain a VA examination and opinion with respect to whether the Veteran's sleep apnea was incurred in or caused by service, or caused or aggravated by his any of his service-connected disabilities. The Board instructed that the examiner's opinion should explicitly address whether the Veteran's noted nocturia was actually a symptom of sleep apnea and the Veteran's contention that he suffered from sleep disturbances since service. In October 2021, a VA examiner opined that it was less likely than not that the Veteran's sleep apnea was incurred in or caused by service. The examiner explained that there is no definitive causation or any evidence of cause and effect between sleep apnea and nocturia. The examiner also noted that the Veteran left service in 2005 but was not diagnosed with sleep apnea until 2016 and a causal relationship to military service was not found. However, the examiner did not sufficiently explain the basis for the conclusion reached, nor does the opinion reflect consideration of the Veteran's contention that he suffered from sleep disturbances since service. Accordingly, the claim is remanded in order to obtain another medical opinion in compliance with the terms of the Board's prior remand instructions. See Stegall v. West,11 Vet. App. 268, 271(1998). The Board also finds that an additional addendum opinion is needed with respect to whether the Veteran's sleep apnea was caused or aggravated by obesity caused by his service-connected rhabdomyolysis. In rendering a negative opinion, the October 2021 examiner explained that the Veteran did not have a diagnosis of obesity and that medical literature failed to demonstrate a pathophysiological causal relationship between the Veteran's sleep apnea and rhabdomyolysis. However, the requirement that a veteran have a current disability before service connection may be awarded is satisfied if the veteran has a disability at the time the claim for disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this regard, VA treatment records indicate the Veteran's body mass index (BMI) was in the obesity range in June 2018 and he was noted to suffer from obesity in January 2019. As the Veteran had a diagnosis of obesity during the pendency of his claim, the Board finds that a remand is necessary to obtain an addendum opinion. The matters are REMANDED for the following action: 1. Provide the claims file to an appropriate VA examiner to obtain an opinion with respect to the Veteran's claim for service connection for sleep apnea. After a review of the claims file, the examiner should respond to the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea is related to his military service? The examiner must explicitly address whether the Veteran's noted nocturia in service was actually a result of undiagnosed sleep apnea (e.g., getting up to urinate at night was actually due to poor sleep quality from undiagnosed sleep apnea). In addressing this contention, the examiner is directed to the following pieces of evidence: a May 2017 VA treatment record noting that the Veteran's nocturia resolved after pap treatment; a May 2017 notice of disagreement linking frequent night time urination to sleep apnea; the October 2010 VA psychiatric examination finding nocturia; and the January 2009 claim for a kidney disability characterized by frequent waking and urinating during the night. The examiner should also address the Veteran's contentions that he suffered from sleep disturbances since service. (b.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea is caused by his service-connected scars in the right mid-thigh, hypertension, rhabdomyolysis, migraine headaches, or adjustment disorder with anxiety? (c.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea was aggravated (worsened beyond its natural progression) by his service-connected scars in the right mid-thigh, hypertension, rhabdomyolysis, migraine headaches, or adjustment disorder with anxiety? If the examiner finds that the Veteran's sleep apnea was aggravated by any of his service-connected disabilities, the examiner should attempt to quantify the level of aggravation beyond the baseline level of the sleep apnea. (d.) In addressing whether the Veteran's service-connected rhabdomyolysis has caused or aggravated the Veteran's sleep apnea, whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's sleep apnea was caused or aggravated (worsened beyond its natural progression) by obesity caused by his service-connected rhabdomyolysis? A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 2. If the claim remains denied, issue a supplemental statement of the case. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Lance, 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.