Citation Nr: 21006110 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 11-00 260 DATE: February 3, 2021 REMANDED Issue of entitlement to service connection for sleep apnea, to include as secondary to a service-connected mental health disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1969 to February 1971. This appeal to the Board of Veterans’ Appeals (Board) arose from a February 2010 rating decision issued by the Department of Veterans Affairs (VA). See August 2010 Notice of Disagreement (NOD); December 2010 Statement of the Case (SOC); December 2010 Substantive Appeal (VA Form 9). In March 2014, the Board remanded the claim for further development of the evidence. March 2014 Board decision. The Veteran testified before the undersigned Veterans Law Judge in a September 2016 hearing. See September 2016 Hearing transcript. His spouse, T B, also testified. Id. In June 2017, the Board remanded the claim again for further development, including obtaining an opinion from a VA examiner on secondary service connection due to a mental health condition and consideration of the lay statements. June 2017 Board decision. In September 2020, the Board remanded the claim again because the VA examiner’s opinion obtained on remand did not consider the lay statements from the Veteran and his spouse about his snoring during service as directed by the June 2017 Board decision. September 2020 Board decision. The Agency of Original Jurisdiction (AOJ) developed the evidence and continued the denial of the Veteran’s claim. November 2020 Supplemental Statement of the Case (SSOC). The claim is now back before the Board. Issue of entitlement to service connection for sleep apnea, to include as secondary to a service-connected mental health disorder is remanded. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding consideration of the lay evidence from the Veteran and his spouse. In its previous decisions, the Board directed that an opinion from a VA examiner should address the lay statements from the Veteran and his spouse about his sleep apnea. June 2017 Board decision; September 2020 Board decision. The Veteran testified that he has snored since service. September 2016 Hearing transcript. His spouse testified that, since he returned from service, the Veteran snores, would still be tired when he woke up, and that she has heard him gasping for air. Id. The Veteran also testified that he believes his past history of excessive alcohol use due to symptoms from his service connected stressor-related disorder either caused or aggravated his sleep apnea. See id. While the September 2020 VA examiner’s opinion considered the Veteran’s and his spouse’s statements that he has snored since service, the VA examiner did not address whether the spouse’s statements about the Veteran feeling tired when he woke up and having seen him gasping for air would support that his sleep apnea was incurred in or the result of service. September 2020 VA examination medical opinion. In addition, neither the September 2020 nor the August 2017 VA examiner considered the Veteran’s excessive alcohol use due to his service connected stressor-related disorder proximately cause, resulted in, or aggravated his sleep apnea. See August 2017 VA examiantion for sleep apnea; September 2020 VA examination medical opinion. The matters are REMANDED for the following action: 1. Obtain an addendum opinion to determine the nature and cause of the Veteran’s sleep apnea, to include as secondary to his service connected stressor-related disorder. If the medical professional determines that it is necessary, schedule the Veteran for a VA examination (or a telehealth interview, review of the record etc., if an in-person examination is not feasible). The medical professional should respond to the following: (a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s sleep apnea began in (or is otherwise related to) the Veteran’s military service? The examiner should consider and discuss the Veteran’s and his spouse’s lay testimony and assertions regarding any pertinent complaints and symptoms. The examiner should specifically consider and discuss their September 2016 hearing testimony that the Veteran has snored since service. The examiner should also consider and discuss his spouse’s testimony that, since his return from service, she has witnessed him feeling tired when he woke up and gasping for air. In other words, the VA examiner is asked that, if the Veteran’s and his spouse’s statements that he has snored, woken up tired, and has been seen gasping for air since his return from service is taken as true, would this evidence support that his current sleep apnea was at least as likely as not incurred in or otherwise related to service? A detailed explanation (rationale) is requested. (b) The examiner should also provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s current sleep apnea is proximately due to or the result of his service connected stressor-related disorder, to including his past history of excessive alcohol use due to his stressor related disorder. (c) If the examiner finds that the Veteran’s sleep apnea is not proximately due to or the result of his service connected stressor-related disorder, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the sleep apnea was aggravated by his service connected stressor-related disorder, to include his past history of excessive alcohol use due to his stressor related disorder. 2. Readjudicate. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Lin 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.