Citation Nr: 21075626 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 16-04 339 DATE: December 21, 2021 REMANDED Entitlement to service connection for sleep disturbances, including as secondary to service-connected sinusitis and rhinitis, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1987 to November 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Veteran testified before the undersigned Veterans Law Judge at a Board hearing. In an August 2019 decision, the Board, in part, denied the Veteran's claim of entitlement to service connection for sleep disturbances. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (the Court). In a Memorandum Decision dated July 20, 2021, the Court vacated the Board's decision and remanded the case. In essence, the Court stated that the Board relied on an inadequate medical opinion when it denied the Veteran's claim. Entitlement to service connection for sleep disturbances, including as secondary to service-connected sinusitis and rhinitis. In the now-vacated August 2019 decision, the Board relied on a January 2016 VA medical opinion which determined that the Veteran's obstructive sleep apnea was not related to his active duty service. In the July 2021 Memorandum Decision, the Court found that this opinion was inadequate. The Court concluded that the January 2016 VA examiner failed to explain what the diagnostic criteria for OSA are and whether the Veteran displayed any of the criteria during his active service, as described by the Veteran's lay and buddy statements. Thus, the Court found that the Board erred by not seeking clarification about "whether the Veteran's exhibited diagnostic criteria for OSA in service and whether OSA began in service based on the testimony of those who observed his sleep patterns during service." The January 2016 VA examiner reported that "[r]isk factors for OSA include obesity, large diameter neck, smoking, alcohol consumption and the use of certain medications in addition to genetic factors." He added that "the vital signs shows that the Veteran was discharged from service with a body mass index (BMI) of 32 and [a]t the time of his post-service diagnosis of OSA his BMI was 39. The January 2016 VA examiner noted that the weight gained post-service is a significant risk factor for development of OSA. The Court concluded that '[i]t is possible that the examiner believed that postservice weight gain was more significant for the development of OSA than in-service obesity, but he did not state that." The Court found that "the lack of rationale here prevents the Board from evaluating the opinion and its probative value." See July 2021 Memorandum Decision. The July 2021 Memorandum Decision states that, "remand is warranted for the Board to obtain an adequate medical opinion on whether [the Veteran's] OSA began in or is otherwise related to service." This matter is REMANDED for the following action: 1. Arrange for an appropriate health care provider to review the Veteran's claims file and provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that OSA had its clinical onset during service or is otherwise related to service. Pursuant to the Court's decision, the examiner should address whether the Veteran's exhibited the diagnostic criteria for OSA in service and whether OSA began in service based on the testimony of those who observed his sleep patterns during service. The examiner should also address whether the post-service weight gain was more significant for the development of OSA than in-service obesity. If the reviewing health care provider finds that physical examination or telehealth interview of the Veteran and/or diagnostic testing is necessary, such should be accomplished. The examiner's attention is drawn to the following evidence: a) The Veteran's girlfriend stated that she had witnessed the "Veteran's sleeping habits since 1996 and that he seemed to stop breathing in the middle of the night and was very tired during the day." June 2014 VA Form 21-4138. b) A Petty officer stationed with the Veteran in 1994 to 1996 service reported that the "Veteran would fall asleep and snore excessively in the common areas of the barracks and very often it would sound as though he would stop breathing as he would gasp for air." June 2014 VA Form 21-4138. c) The Veteran testified that his friends would observe him falling asleep in the crew lounge aboard the U.S.S. Roark. The Veteran reported that during service, his friend told him that when he fell asleep, he sounded as if he was swallowing his tongue and had stopped breathing. The Veteran added that when he started dating his partner urged him to seek treatment because when he slept, he sounded as if he would stop breathing. March 2019 hearing transcript. d) Veteran's service treatment records (STRs) show complaints of chest congestion, cough, sore throat and difficulty breathing at night. STRs. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinion. However, if there is a medical reason to doubt its veracity, the examiner should explain why the Veteran's statements or recollection are inconsistent with the evidence in this case, medical principles relating to the onset and progress of the disease, the specific findings in the record, and/or your professional judgment. 2. After undertaking any additional development deemed appropriate and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran's pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Oquendo, L., 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.