Citation Nr: A21020205 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 200727-99291 DATE: December 17, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. REASONS FOR REMAND The Veteran had active service in the United States Army from June 2007 to August 2007, from June 2009 to July 2010, and from March 2018 to March 2018, as well as additional service in the Army Reserves. The rating decision on appeal was issued in October 2019 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In January 2020, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of entitlement to service connection for obstructive sleep apnea. In May 2020, the agency of original jurisdiction (AOJ) issued a rating decision that continued to deny the service-connection claim. Thereafter, in a July 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. A Board hearing was held in May 2021. Based on the application of AMA, the Board may consider only the evidence of record at the time of the AOJ decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). After the hearing, the Veteran submitted additional evidence; however, it relates to the Veteran reporting to VA that he went back on active duty and does not relate to the claim for service connection for obstructive sleep apnea. Entitlement to service connection for sleep apnea is remanded. VA afforded the Veteran a VA sleep apnea examination in August 2019. At that time, a VA examiner noted that the Veteran reported that his sleep apnea symptoms began around 2010, including snoring loudly and sometimes stopping breathing. He stated that his symptoms were unchanged and that he was tired throughout the day and never felt rested. He noted that he had never been seen for sleep apnea and that a sleep study was scheduled. Thereafter, a sleep study was completed in September 2019 and the noted impression was mild obstructive sleep apnea. In October 2019, the same VA examiner opined that the Veteran's claimed condition was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that she had reviewed the medical records provided and completed the examination pertinent to the claimed condition and concluded that it is more likely than not that the Veteran has diagnosed sleep apnea which began during service and has caused persistent daytime sleepiness and irritability. Notably, the October 2019 VA examiner's opinion does not appear to consider the Veteran's service treatment records, which the Board notes do not document complaints of sleep apnea or related symptoms. As such, the opinion is inadequate. Accordingly, the Board finds that remand is required to correct this pre-decisional duty to assist error and to obtain an adequate addendum opinion concerning the Veteran's claim. The matter is REMANDED for the following action: Refer the claims file to an appropriate examiner to obtain a medical opinion regarding whether obstructive sleep apnea had its onset during a period of active duty. If the examiner determines that an in-person examination should be performed, then schedule an examination. The claims file and a copy of the below facts must be made available to the reviewing VA examiner. To assist in a review of the claims file, the examiner is informed of the following facts with citations in the record, where applicable: The Veteran performed active duty in the United States Army from June 2007 to August 2007, June 2009 to July 2010, and from March 4, 2018 to March 24, 2018. The Veteran believes that he developed obstructive sleep apnea during the period of active duty from June 2009 to July 2010. An April 2006 Report of Medical Examination shows normal clinical evaluations of the mouth and throat. See VBMS entry with document type, "STR - Medical," receipt date 05/04/2019, at page 130 (item 20). An April 2006 Report of Medical History shows the Veteran's denial of a history of frequent trouble sleeping. See VBMS entry with document type, "STR - Medical," receipt date 05/04/2019, at pages 121 122 (item 17.d.). A January 2008 Initial Medical Review - Annual Medical Certificate shows that the Veteran answered "No" when he was asked if he currently had any medical or dental problems, whether he had any medical or dental problems since his last periodic physical examination, or if he had been seen by or been treated by a dentist, physician, or other health care provider since his last periodic physical examination. See VBMS entry with document type, "STR - Medical," receipt date 05/04/2019, at page 87. January 2008 and July 2009 Pre-Deployment Health Assessments document that the Veteran denied having medical or dental problems, that he was not currently on a profile, or light duty, or undergoing a medical board, and that he had no questions or concerns about his health. See VBMS entry with document type, "STR - Medical," receipt date 05/04/2019, at pages 95-96 (January 2008) and 97 98 (July 2009). A March 2010 service treatment record shows that the Veteran was 72 inches tall, weighed 166 pounds, and had a BMI of 22.51. See VBMS entry with document type, "STR - Medical," receipt date 04/29/2019, page 64. A May 2010 service treatment record shows that a Review of Systems was performed and the examiner documented, "No systemic symptoms" and no "fatigue." See VBMS entry with document type, "STR - Medical," receipt date 04/29/2019, at page 37. A June 2010 Post-Deployment Health Assessment documents that the Veteran answered "No" when asked if he currently had any questions or concerns about his health. When subsequently asked to list his concerns, the Veteran included an unrelated condition of "cellulitis." Additionally, the Veteran did not check "Yes" or "No" when given the opportunity to report problems sleeping or still feeling tired after sleeping. He also denied experiencing sleep problems. See VBMS entry with document type, "STR - Medical," receipt date 05/04/2019, at pages 100-102 (items 8, 9.c.(7), 9.d.(7)). A November 2010 Post-Deployment Health Assessment shows that when asked if he currently had a health condition, the Veteran marked "Other" and listed "facial cellulitis." He did not document "Problems sleeping or still feeling tired after sleeping." See VBMS entry with document type, "STR - Medical," receipt date 05/04/2019, at pages 134-138 (item 8a). A March 2011 VA treatment record shows that the Veteran was there to establish health care. At that time, it was documented that he had "no complaint[s]." A review of systems was performed, and the Veteran denied sore throats and chronic fatigue. See VBMS entry with document type, "CAPRI," receipt date 08/22/2019, at pages 3-4. Health Questionnaires for Dental Treatment completed in November 2011, November 2012, January 2017, and February 2018 each document that the Veteran answered "No" when he was asked whether he had been under a health care provider's care in the last two years, whether he had any serious illness, operation, or hospitalization in the past, or whether there had been any change in his health in the last two years. See VBMS entry with document type, "STR - Medical," receipt date 05/04/2019, at pages 13 (February 2018), 14 (January 2017), 16 (November 2012), 17 (November 2011). Health Questionnaires for Dental Treatment completed in November 2015 and November 2018 document that the Veteran answered "Yes" when he was asked whether he had been under a health care provider's care in the last two years. In November 2015, he reported the medical problem involved a skin condition. In November 2018, he reported the medical problem involved neck pain. He denied any serious illness, operation, or hospitalization in the past, or whether there had been any change in his health in the last two years. See VBMS entry with document type, "STR - Medical," receipt date 05/04/2019, at pages 12 (November 2018) & 15 (November 2015). A May 2014 treatment record documents that the Veteran's general overall feeling/health was very good, and a review of systems does not document complaints of fatigue. At that time, he was 72 inches tall, weighed 180 pounds, and had a BMI of 24.41. See VBMS entry with document type, "STR - Medical," receipt date 04/29/2019, at pages 20-21. A February 2018 Annual Periodic Health Assessment documents that the Veteran did not indicate that he had been bothered by trouble falling or staying asleep within the past month. Within the document, the Veteran reported that during the last two weeks, he had gotten 7-9 hours of sleep on most days and that during the last two weeks, he had not felt impaired or unable to adequately perform due to sleepiness or poor quality sleep. See VBMS entry with document type, "STR - Medical," receipt date 05/04/2019, at pages 189 (item 5.q.) and 193 (items 17 &18), respectively. An October 2018 Annual Periodic Health Assessment documents that the Veteran did not indicate that he had been bothered by trouble falling or staying asleep within the past month. Within the same document, the Veteran reported that during the last two weeks, he had gotten 7-9 hours of sleep on most days and that during the last two weeks, he had not felt impaired or unable to adequately perform due to sleepiness or poor quality sleep. See VBMS entry with document type, "STR - Medical," receipt date 05/04/2019, at pages 163 (item 5.q.) and 167 (items 17 &18), respectively. Upon VA Sleep Apnea Examination in August 2019, the Veteran reported that his sleep apnea symptoms began around 2010, including snoring loudly and sometimes stopping breathing. He stated that his symptoms were unchanged at the present time and that he was tired throughout the day and never felt rested. He noted that he had never been seen for sleep apnea and that a sleep study was scheduled. See VBMS entry with document type, "C&P Exam," receipt date 10/14/2019, with "DBQ RESP Sleep apnea" in the Subject field. A September 2019 sleep study documents that the Veteran was 72 inches tall, weighed 196 pounds, and had a BMI of 26.8. The impression was "mild obstructive sleep apnea with an overall apnea-hypopnea index (AHI) of 6.6/hour without associated hypoxemia." See VBMS entry with document type, "C&P Exam," receipt date 09/24/2019, with "Sept 2019 sleep study" in the Subject field. In October 2019, the same examiner who performed the August 2019 VA examination opined that the Veteran's claimed condition was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that she had reviewed the medical records provided and completed the examination pertinent to the claimed condition and concluded that it is more likely than not that the Veteran has diagnosed sleep apnea which began during service and has caused persistent daytime sleepiness and irritability. See VBMS entry with document type, "C&P Exam," receipt date 10/15/2019, with "DBQ sleep apnea opinion" in the Subject field. In his November 2019 Notice of Disagreement, the Veteran wrote that his sleep had been an issue ever since he returned from deployment to Iraq from 2009-2010. He noted that for years he felt like he could not get enough sleep and that no matter how much he slept, he still felt tired. He stated that he did not believe a breathing machine would help him sleep, but after treatment with a CPAP machine, his energy level and sleep had improved dramatically. He further reported that in the Army, he worked as a wheeled vehicle operator and drove the heavy equipment transport, which involved an irregular sleep cycle and irregular eating habits, which affected his sleep pattern. He wrote that upon returning from deployment, he stated that his sleep pattern and sleep cycle were thrown off and that it took several months to be able to get back to a regular sleep pattern, after which he constantly felt tired, and never well-rested. See VBMS entry with document type, "VA Form 21-0958 Notice of Disagreement," receipt date 12/02/2019. At the May 2021 Board virtual hearing, the Veteran testified that his sleep apnea started after his return from a deployment to Iraq. He stated that he did not really notice the problem until he came home and tried to sleep a full night. He also noted that from 2010 to 2018, his ex-wife would wake him up every night and tell him that he was not breathing or snoring too loudly. See VBMS entry with document type, "Hearing Transcript," receipt date 05/25/2021. The examiner's review of the record is NOT restricted to the evidence listed above. This list is provided to assist the examiner in locating potentially relevant evidence. Based upon a review of the record, including the evidence discussed above, the examiner is requested to opine whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's mild obstructive sleep apnea began during a period of active duty, which periods were from June 2007 to August 2007, June 2009 to July 2010 and from March 4, 2018 to March 24, 2018, or is otherwise related to active service. Please state upon what facts, medical principles, and/or medical literature the opinion is based. A full rationale must be provided for all medical opinions given. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. The examiner shall then explain whether the inability to provide a more definitive opinion is the result of a need for more information and indicate what additional evidence is necessary, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Chad Johnson, 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.