Citation Nr: 21077166 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 13-24 555 DATE: December 28, 2021 REMANDED Service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1976 to October 1982 to August 1996. This matter originally came before the Board of Veterans' Appeals (Board) from an August 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Veteran testified at a July 2017 Board video-conference hearing before a judge who is no longer with the Board. The Veteran subsequently testified at a July 2021 Board virtual hearing before the undersigned Veterans Law Judge (VLJ). A copy of both hearing transcripts are associated with the claims file. This matter has previously been remanded by the Board for further development, most recently in June 2020. A February 2021 Board decision denied the Veteran's claim. The February 2021 Board decision was subsequently vacated in May 2021 and this matter is again before the Board. Service connection for sleep apnea is remanded. The Veteran believes that service connection for sleep apnea is warranted. See July 2021 Hearing Transcript. The most recent sleep apnea examination took place in October 2020. See November 2020 C&P Exam. The examination found, among other things, that due to all of the factors that can contribute to weight gain (like stress and medications) and because sleep apnea was not found during service, the Veteran's sleep apnea was not related to service, including weight gain. The Board finds that the November 2020 examination did not consider/was unable to consider all the relevant evidence of record. Among many other things, the examination did not consider/was unable to consider, the 2002 sleep study which found obstructive sleep apnea and was performed based on complaints of snoring, morning headaches, and excessive daytime hypersomnolence; service treatment records showing complaints of morning headaches and potentially daytime hypersomnolence; the Veteran's report that his spouse noticed problems with him snoring during service; and the Veteran's report of hypersomnolence during service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); August 2017 Medical Treatment Record; April 1997 STR Medical Photocopy; July 2021 Hearing Transcript. Additionally, the Board previously found that an addendum opinion was needed for a 2011 VA sleep apnea examination. That addendum opinion took place in 2018. However, the Board subsequently found the 2018 addendum opinion inadequate. See December 2017 BVA Decision; June 2020 BVA Decision. For these reasons, among others, a remand is needed for a new VA examination. The matter is REMANDED for the following action: 1. Update VA and private treatment records. VA treatment records appear current up to August 2021. 2. Schedule one or more appropriate VA examinations for the Veteran's sleep apnea condition. The need for an in-person examination of the Veteran is left to the discretion of the examiner. Following a review of the claims file and a copy of this Remand, the reviewing examiner is requested to furnish an opinion with respect to the following: (A) Identify all sleep apnea related disabilities existing at any point during the appeal period (i.e., since October 2010) even if they are currently asymptomatic or have resolved during the pendency of the appeal. (B) For each identified disability, is it at least as likely as not (a 50 percent or greater probability) that the disability had its onset in or is otherwise related to the Veteran's service? (C) For each identified disability, is it at least as likely as not (a 50 percent or greater probability) that the disability is/was caused by any or all of the Veteran's service-connected disabilities (including but not limited to medications taken for the service-connected disabilities)? (D) For each identified disability, is it at least as likely as not (a 50 percent or greater probability) that the disability is/was aggravated beyond its natural progression by any or all of the Veteran's service-connected disabilities (including but not limited to medications taken for the service-connected disabilities)? State whether there is/was a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described in terms of diagnosis, severity, and duration. The permanence of the aggravation is not at issue. (E) Is it at least as likely as not (a 50 percent or greater probability) that any or all of the Veteran's service-connected disabilities (including but not limited to medications taken for the service-connected disabilities) caused or aggravated the Veteran's obesity/being overweight including whether there is/was any incremental increase in disability or aggravation as a result of service? State whether there is/was a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described in terms of diagnosis, severity, and duration. The permanence of the aggravation is not at issue. (F) If yes, is it at least as likely as not (a 50 percent or greater probability) that the obesity/being overweight caused or aggravated any or all of the Veteran's sleep apnea related disabilities including whether there is/was any incremental increase in disability or aggravation as a result of service? State whether there is/was a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described in terms of diagnosis, severity, and duration. The permanence of the aggravation is not at issue. If yes, which ones? In addition to the other relevant evidence of record, the reviewing examiner is asked to consider and address as appropriate the following information with a caution that this list is not a substitute for a review of the record: (1) A list of the Veteran's service-connected disabilities. See November 2021 Rating Decision Codesheet. (2) The Veteran's 2021 report that he had sleep apnea symptoms during service. The sleep apnea during service was not properly diagnosed or treated and was not diagnosed until after service. The Veteran's thyroid condition during service caused confusion for the doctors. When the Veteran reported fatigue or insomnia during service, the doctors wrongly attributed it to the thyroid condition. Adjusting the thyroid medication made the fatigue and insomnia worse. The doctors were too focused on the thyroid problem to consider other reasons for the Veteran's sleep issues. During service, the Veteran gained a lot of weight. The Veteran's spouse noticed that the Veteran snored in the late 1980s or early 1990s. The snoring continued nightly until the Veteran received a CPAP machine. The Veteran did not have the opportunity to get much sleep for many years during service due to his job. Even after the Veteran's thyroid problem was fixed, his sleep symptoms continued. The Veteran saw at least 15 to 20 doctors during service. Every time he saw a new doctor, they started back at the beginning and focused on the thyroid stuff. Around 1996, during service, the thyroid was fixed, and the Veteran was told that a different problem may have been responsible for the sleep problems. The Veteran was diagnosed with sleep apnea around 2001. After leaving service, the Veteran spoke to a doctor about his thyroid and mentioned being sleepy all the time and having insomnia. The doctor asked a few questions and then told the Veteran that it could be sleep apnea and that the sleep problems were not related to the thyroid issue. He was soon diagnosed with sleep apnea after that. There was no difference between the symptoms during service and the symptoms he had at that time. The Veteran was misdiagnosed and mistreated for the sleep issues during service. Further information is provided. See July 2021 Hearing Transcript. (3) Medical records from 2020 showing a history of snoring, excessive daytime fatigue and sleepiness, and depression, which appeared to be the reasons for a sleep study to check for obstructive sleep apnea. See July 2021 Medical Treatment Record. (4) A medical record from 2020 showing that weight was affected by lack of sleep, stress, and medications. See November 2020 C&P Exam. (5) Medical records from 2018 showing that exercise played a role in weight loss. Medical records from 2019 showed weight gain with steroids. See June 2019 CAPRI. (6) Medical records from 2002 showing increased physical activity and weight loss. Medical records from 2008 showed that sedative/hypnotic agents could worsen snoring and sleep-disordered breathing. Medical records from 2010 showed that excessive oral food and beverage intake was related to emotions, social stuff, etc. Medical records from 2018 showed that right knee medication could affect sleep and that right knee pain messed with sleep. Sleep was also disrupted by anxiety and depression. The Veteran missed several weeks of CPAP use due to depression. See November 2018 CAPRI. (7) Medical records from 2002 showing a sleep study which found obstructive sleep apnea. The study was done based on complaints of snoring, morning headaches, and excessive daytime hypersomnolence. See August 2017 Medical Treatment Record. (8) The Veteran's 2017 report that he was still CPAP dependent and weighed about the same as he did during service. He gained significant weight during service. Prior to 2000, sleep apnea was not diagnosed frequently. Service treatment records showed a lot of sleep disturbances during service. There were frequent complaints about falling asleep. The Veteran was close to 230 pounds at the end of service. Before separation from service, the Veteran's spouse complained about the Veteran's snoring. During service, the Veteran had trouble staying awake during the day. This went on for about 11 years prior to leaving service. The Veteran sought treatment and told the doctors about his sleep problems and insomnia. During service, the Veteran was taken off a thyroid medication, then quickly gained about 30 pounds. The Veteran noticed sleep disturbances around that time and the Veteran's spouse had not complained about the Veteran's snoring before that time. The Veteran was diagnosed with sleep apnea in 2000 and was not initially given a CPAP machine for it. Treatment for sleep apnea had changed over time. The Veteran had daytime somnolence and snored during service. The symptoms were the same no matter what times the Veteran worked during service. Further information is provided. See July 2017 Hearing Transcript. (9) A medical record from 2015 showing a history of loud snoring, fatigue, and a diagnosis of obstructive sleep apnea in 2002. See September 2015 DBQ. (10) The Veteran's 2013 report that sleep issues were incorrectly attributed to a thyroid condition during service. See August 2013 Form 9. (11) A medical record from 2011 showing that service treatment records showed a diagnosis of periodic insomnia for two months in 1989 as well as trouble falling asleep, being unable to sleep, and decreased sleep in 1993. The Veteran reported that his sleep problems began after problems with his thyroid. Obstructive sleep apnea was diagnosed in 2000. See August 2011 VA Examination. (12) Medical records from 2008 showing that obstructive sleep apnea was diagnosed after complaints of snoring. See January 2009 Medical Treatment Record. (13) The Veteran's 2004 report that during service, he reported sleep problems in 1988, 1991, and 1993. He was later diagnosed with sleep apnea. See May 2004 Statement in Support of Claim. (14) Service treatment records showing fatigue, that the Veteran gained about 25 pounds which was related to his thyroid, that the Veteran felt tired, a report of morning headaches, that the Veteran was unable to exercise because of his knee and injuries, that hypothyroidism was responsible for being overweight, a 1990 assessment of sleep disturbance, sleep complaints in 1995, more than a two month history of difficulty sleeping with an assessment of insomnia in 1989, a 1993 report of being unable to sleep and insomnia for about 3 months, a 1994 report of once having or currently having frequent sleep trouble, and a weight of 235 pounds with recent weight gain or loss at separation. Further information is provided. See April 1997 STR Medical; April 1997 STR Medical Photocopy. (15) All other relevant lay and medical evidence. A complete rationale for all opinions offered should be provided. Address the Veteran's documented history and assertions. All necessary tests and studies should be conducted. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner should provide an explanation stating why. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is due to the limits of the medical community's knowledge or due to the limits of the examiner's medical knowledge. The Veteran is competent to attest to factual matters of which the Veteran has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. 3. Readjudicate the issue on appeal. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Dougan, 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.