Citation Nr: 21006552 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 14-25 389A DATE: February 4, 2021 REMANDED The issue of service connection for obstructive sleep apnea (OSA) is remanded. REASONS FOR REMAND The Veteran had active service from June 1970 to July 1991. The issue of service connection for OSA is remanded. The matter is REMANDED for the following action: 1. BACKGROUND FOR THE RO ADJUDICATOR: In June 2019, the Board of Veterans’ Appeals (Board) remanded the issue of service connection for OSA. The RO was specifically instructed to consider whether the Veteran should undergo a VA Persian Gulf War examination to determine if he has an undiagnosed sleep disturbance disorder under VA regulation. However, there is no record that consideration was given to this or that the Veteran was afforded a VA Persian Gulf War examination. Additionally, on remand, a VA examination was requested. Specifically, the examiner was asked to provide an opinion as to whether the Veteran’s OSA was incurred in service or caused by or aggravated by an in-service injury, event, or illness, to include tonsillitis and/or tonsillectomy, and to include exposure to any environmental hazards in the Southwest Asia theater. The examiner was also asked to specifically discuss the significance of lay contentions of record that the Veteran’s symptoms began in-service, and to provide a comprehensive explanation for any opinion or conclusion expressed. The Veteran was afforded a VA examination in January 2020 and an addendum opinion was provided in October 2020. These opinions only addressed the issue of “direct” service connection, and not whether the Veteran’s current OSA is related to his exposure to environmental hazards or as considered to be an undiagnosed illness. Neither the January 2020 VA examination nor the October 2020 addendum opinion discussed the issue of whether the Veteran’s current OSA is related to his tonsillitis and/or tonsillectomy in-service. The opinions also did not discuss the significance of the lay statements of record, which indicate that the Veteran’s symptoms began in-service. When there is not substantial compliance with Board remand requests, the Board errs as a matter of law when it does not ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). 2. Ensure that all outstanding VA treatment records are associated with the claims file. 3. The RO MUST consider whether the Veteran should undergo a VA Persian Gulf War examination to determine if he has an undiagnosed sleep disturbance disorder under VA regulation, and the record should be so annotated. 4. RETURN THIS CASE TO THE JANUARY 2020 VA EXAMINER and request a further addendum. If that examiner is no longer available, schedule the Veteran for a VA examination with an appropriate VA examiner regarding the etiology of the Veteran's OSA. All evidence and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. The examiner MUST respond to the following: (a.) The examiner MUST opine as to whether the Veteran's OSA was incurred in service or caused by or aggravated by an in-service injury, event, or illness, to include tonsillitis and/or tonsillectomy. (b.) The examiner MUST specifically address the significance of the lay contentions that the Veteran’s symptoms began in-service, as outlined below, as well as provide a comprehensive explanation for any opinion or conclusion expressed. The examiner’s attention is drawn to the following: * Service treatment records (STRs) indicate that the Veteran was diagnosed with chronic tonsillitis in-service and underwent a tonsillectomy in August 1975. However, the STRs do not contain any record of complaints, treatment, or diagnosis of OSA in-service. The May 1990 retirement examination also did not indicate any complaints related to OSA. * Private medical records indicate that the Veteran was first diagnosed with OSA in June 2004 after completing a sleep study. * In an April 2012 statement by the Veteran’s spouse, she stated that the Veteran frequently stopped breathing during sleep for a large portion of their over forty-year marriage. * In the October 2018 Board hearing, the Veteran’s spouse testified to the Veteran’s lack of breathing during sleep, which she stated began during the Veteran’s period of service. * In the January 2020 VA examination, the examiner opined that the Veteran’s current OSA was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the Veteran served from June 1970 to July 1991, and that his records show that he was not diagnosed with OSA until 2004, many years after his service. However, the examiner did not specifically address whether the Veteran's OSA was caused by his in-service tonsillitis and/or tonsillectomy. The examiner also did not address the lay contentions that the Veteran’s symptoms of OSA began in-service. * In the October 2020 addendum opinion, the examiner cited research that has shown that individuals with higher annual NO2 and PM 2.5 exposure levels had greater odds of sleep apnea. However, the examiner explained that correlation does not necessarily mean causation. The examiner also cited to a recent study, which contemplated the long-term health impact of environmental exposures associated with open pit burning in deployed U.S. service members. The examiner noted that the study did not find a significantly increased risk in the exposure group. The examiner stated that risk factors associated with OSA are obesity, increase neck circumference, high blood pressure, chronic nasal congestion, asthma, smoking, and diabetes. The examiner concluded that although the Veteran had exposure to burn pit fires, and may have had exposure to smoke and particles, he was diagnosed with OSA years after he left the service. Again, the examiner did not specifically address whether the Veteran's OSA was caused by his in-service tonsillitis and/or tonsillectomy. The examiner, again, did not address the lay contentions that the Veteran’s symptoms of OSA began in-service. 5. Following the review and any additional development deemed necessary, re-adjudicate the claim. Should the claim not be granted in its entirety, issue an appropriate supplemental statement of the case (SSOC) and forward the claim to the Board for adjudication. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 6. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Timothy T. Emmart 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.