Citation Nr: 21075856 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 17-01 427 DATE: December 21, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1985 to October 1988, December 1990 to May 1991, and from February to November 2002 This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in December 2018 and July 2021, when it was remanded for further development An additional remand is necessary to clarify the etiology of the Veteran's sleep apnea. In the July 2021 Board remand, the Board noted the Veteran's assertions that she was exposed to a SCUD missile and residual particulates caused thereby, nerve gas, and burn pits. The Board asked the examiner to address each environmental hazard separately and discuss whether any such exposure as likely as not caused the Veteran's obstructive sleep apnea. The Board also asked the examiner to explain why the Veteran's statements or recollections are inconsistent with the evidence, medical principles relating to the onset and progress of the disease, the specific findings in the record, and professional judgment. In response, the examiner relied on the lack of treatment records to provide a negative opinion without addressing the Veteran's lay statements at the August 2021 examination that her boyfriend told her she was not sleeping well and had started snoring when she returned from service. The Board also notes there is of record an August 27, 2015 VA mental health note at which time the Veteran reported sleep difficulties dating back to Operation Desert Storm. Additionally, while the examiner provided an opinion regarding "environmental hazards," the opinion does not appear to address the Veteran's assertions separately regarding SCUD missile particulates or burn pits, nor provide adequate rationale. The Veteran's lay contentions must be considered and weighed in making the determination as to whether a nexus exists between the current disorder and service. However, the examiner did not provide well-reasoned medical conclusions and supporting data that would aid the Board in weighing the evidence. A remand by the Board confers on a veteran the right to compliance with the Board's remand orders. Stegall v. West, 11 Vet. App. 268 (1998). Finally, the Veteran's representative, Disabled American Veterans, submitted an appellate brief in December 2021. The Veteran's representative argues that VA has acknowledged a possible link between exposure in Southwest Asia and the prevalence of sleep apnea, and references a VA post-deployment report noting a higher rate of sleep apnea in those veterans. Additionally, the Veteran's representative referenced a study, which they argue shows that veterans with Southwestern Asia exposure have a higher rate of inspiratory airflow dynamics during sleep. VA received this new evidence after the examiner submitted his opinion, meaning he could not have considered it. In sum, the Board finds that an addendum opinion is necessary in order to fully consider the evidence of record. See Barr v. Nicholson, 21 Vet. App. 303, 312(2007) (when VA undertakes to provide a VA examination or obtain an opinion, it must ensure that the examination or opinion is adequate) Accordingly, remand is warranted to obtain an addendum medical opinion that adequately considers the evidence of record. The matter is REMANDED for the following actions: 1. Obtain a VA addendum medical opinion from an appropriate examiner regarding the nature and etiology of the Veteran's sleep apnea. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. After a thorough review of the claims file, the examiner is asked to respond to the following: (a) Provide an opinion as to whether it is at least as likely as not (50 percent or higher probability) that the Veteran's obstructive sleep apnea was incurred as a result of her military service, including her exposure to environmental hazards in Southwest Asia. The examiner must address the Veteran's assertions that she was exposed to a SCUD missile and any residual particulates caused thereby, nerve gas, and burn pits. The requested opinion must address each environmental hazard separately and discuss whether any such exposure as likely as not caused the Veteran's obstructive sleep apnea. In doing so, the examiner MUST specifically address: (i) the Veteran's report that when she returned from service, her boyfriend complained that she was snoring and tired a lot during the day. See C&P Exam, Sleep Apnea Disability Benefits Questionnaire, dated August 13, 2021; and (ii) the Veteran's report that she had sleep problems since Desert Storm. See VA mental health note, dated August 27, 2015. (iii) the representative's assertions that "the VA has also acknowledged that there is a possible link between exposure in the Southwest Asia and the prevalence of sleep apnea." They reference a VA post deployment report that notes sleep apnea in veterans at a much higher rate than any other group of veterans. Another study "Inspiratory airflow dynamics during sleep in veterans with Gulf War illness: a controlled study "shows that veterans with Southwestern Asia exposure have a much higher rate than civilians." **The examiner is to specifically consider the Veteran's competent statements in formulating the opinion. A full and thorough rationale must be provided for any opinion given, referencing relevant medical and lay evidence where appropriate. Please note: lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim and cannot be used as a rationale in explaining why the current disability is not related to service. If the examiner cannot offer an opinion without resort to speculation, he or she should explain why and state what additional evidence, if any, would be required to offer an opinion. 2. Thereafter, readjudicate the remanded claim. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Beach, Julia M. 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.