Citation Nr: 21006833 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 18-22 711 DATE: February 5, 2021 REMANDED Entitlement to service connection for a sleep disability, to include sleep apnea and sleep disturbance, as secondary to service-connected disabilities, is remanded. Entitlement to service connection for fibromyalgia, to include as secondary to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from March 2001 to September 2001. By way of procedural history, the Board notes that this claim was initially claimed as a claim for sleep disturbance by the Veteran in July 2012. After some development, to include a VA examination, this claim was ultimately interpreted by the VA/RO as a claim for service connection for sleep apnea, as the medical evidence demonstrated a diagnosis of sleep apnea. The claim for service connection for sleep apnea was ultimately denied in a March 2013 rating decision. This decision became final as the Veteran did not file a timely Notice of Disagreement (NOD) or submit new and material evidence within a year after the decision. Subsequently, in July 2018, the Veteran filed a claim, which was interpreted as a claim to reopen the previously denied service connection claim for sleep apnea. The RO declined to reopen the claim, noting that no new or material evidence had been submitted. The Veteran, this time, filed a timely NOD and substantive appeal (VA Form 9), and the claim proceeded to the Board. In a February 2020 Board decision, the Veteran’s claim for service connection for sleep apnea was reopened, with a finding of new and material evidence. However, finding that there was insufficient medical evidence, the Board remanded the substantive portion of the claim back to the RO for further development, to include acquiring a VA examination and opinion regarding the etiology of the Veteran’s claimed sleep apnea. Such development was substantially completed by the RO and the claim is back before the Board for appellate review. The Board finds, however, that the Veteran’s claim has been mischaracterized since its inception, and no longer represents the full berth of the Veteran’s actual claim. To this end, the Board notes that in her initial claim in 2012 the Veteran characterized her claim as sleep disturbance, and in this regard her lay statements and assertions have all demonstrated some inability to sleep or stay asleep as part of this particular claim. However, despite such wording in her actual claim and her symptom assertions, the RO initially, and the Board has continued to, characterize this claim as service connection for sleep apnea. The Board now finds that such characterization to be in error. Board notes that the scope of a claim for service connection includes any disability that reasonably may be encompassed by the Veteran’s description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Here, as noted, the Veteran’s initial claim explicitly noted “sleep disturbance”, and both lay and medical evidence of record has not only demonstrated a diagnosis for sleep apnea (a respiratory condition), but also issues of actually falling and remaining asleep (to include insomnia). Therefore, providing the Veteran with the benefit of the doubt, the Board must recharacterize such claim as a claim for service connection for a sleep disability, to broadly include both sleep apnea and sleep disturbance, as noted in the title section above. In January 2021, the Board provided acknowledgement to the Veteran that private attorney withdrew his representation. The letter to the Veteran informed her that there is no longer record of an appointed service organization or representative to assist her and that she can contact the VA for a listing of the recognized Veteran Service Organizations. To date, the Veteran has not appointed a new representative. 1. Entitlement to service connection for a sleep disability, to include sleep disturbance and sleep apnea, as secondary to other service-connected disabilities The Board finds that the October 2020 VA examination of record discussing the nature and etiology of the Veteran’s sleep apnea to be inadequate and incomplete. Here, as noted above, as the characterization of the Veteran’s claim for service connection for a sleep disability has been broadened to include non-respiratory (e.g. sleep apnea) conditions, the acquired opinion, which focuses exclusively on sleep apnea, is no longer adequate. The Board finds that while the October 2020 VA examiner opined against the Veteran’s claim for sleep apnea, as secondary to his service-connected conditions, the examiner provided no opinion regarding other sleep disabilities also demonstrated in the Veteran’s medical history. Therefore, the examination report must be considered incomplete and additional opinion is required. The Board notes that in both lay statements from the Veteran, as well as in private and VA treatment records, the evidence shows that the Veteran not only suffers from sleep apnea, but also various levels of sleep disturbance and/or insomnia. Here, on several occasions in the Veteran’s submitted private treatment records, the Veteran’s treating physician has noted her inability to fall and stay asleep at night, to include noted “sleep issues” for which the Veteran has been prescribed medication. Additionally, VA records also show distinct and disparate notations for both sleep apnea, sleep paralysis, and difficulty falling asleep. The Board notes that the nature and etiology of such condition should be diagnosed and discussed by a VA examiner, as they related to any service-connected condition and/or service. Therefore, as the latest examination did not address all the diagnosed sleep disabilities and symptoms, the Board finds that opinion to incomplete and remand is required for VA to fulfill the duty to assist the Veteran. 2. Entitlement to service connection for fibromyalgia, to include as secondary to other service-connected disabilities is remanded. The Board notes that a remand is also required for the Veteran’s claim for fibromyalgia. To this end, the Veteran has claimed that such condition is secondary to her sleep disability, which has been remanded herein. As such, the Board finds these claims to be inextricably intertwined. Where a claim is inextricably intertwined with another claim, the claims must be adjudicated together. Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, further consideration of the claim for fibromyalgia must also be remanded. In doing this, the Board is cognizant of the most recent October 2020 VA examination and opinion that opined that the Veteran’s claimed fibromyalgia was not due to any aspect of the Veteran’s active service and was not caused or aggravated by the Veteran’s service-connected disabilities, or her sleep apnea. The Board finds, however, that the examiner’s opinion regarding secondary causation/aggravation fails to provide an actual rationale, and also is too restrictive in light of the expanded claim for a sleep disability as noted in the introduction section of this decision. Additionally, the opinion also fails to address positive evidence of a correlation between the Veteran’s sleep disturbance and her fibromyalgia, to include that specifically noted in a private treatment letter from Dr. C. S., which explicitly noted fibromyalgia was due to her claimed sleep disturbance. As such, the Board finds such opinion to be inadequate, and remand is required for an addendum opinion. The matters are REMANDED for the following action: 1. Obtain all VA medical records of treatment, to include any hospitalizations. 2. After obtaining appropriate authorization, obtain any private medical records identified by the Veteran. 3. Thereafter, schedule the Veteran for a VA examination with a VA sleep specialist to address the nature and etiology of the Veteran’s claimed sleep disability, to include insomnia and/or sleep apnea. If any additional sleep disabilities other than sleep apnea is found to be a part of the Veteran’s service-connected disabilities, such as her anxiety disorder, the examiner must explicitly make such a finding, and explain that such condition and symptoms are undistinguishable from those of the psychiatric disorder. The clinical/medical professional must be provided access to the Veteran’s entire claims file, and the examiner must specify in the report that the claims file has been reviewed. Following a review of the files, the examiner is asked to address the following: (a) Is it at least as likely as not that any of the Veteran’s sleep disabilities had their onset during or is otherwise related to any injury or disease in service?; (b) Is it at least as likely as not that any of the Veteran’s sleep disabilities were (i) caused or (ii) is aggravated (i.e., worsened beyond the natural progression) by the Veteran’s service-connected disabilities, which includes anxiety disorder and numerous painful joint disorders of the knees, hips, ankles, and feet? Please specifically discuss the journal articles submitted by the Veteran entitled “Association of Psychiatric Disorders and Sleep Apnea in Large Cohort” and “The Association of Obstructive Sleep Apnea and Chronic Pain” as well as the October 2018 private psychological evaluation that indicated that there was a causal relationship between physical disorders and impaired sleep. A complete and fully explanatory rationale must be provided for any opinion offered. If any opinion cannot be rendered without resorting to speculation, the examiner must explain why. 4. Schedule the Veteran for a VA examination to address the nature and etiology of fibromyalgia. The examiner must be provided access to the Veteran’s entire claims file, and the examiner must specify in the report that the claims file has been reviewed. Following a review of the files, the examiner is to address the following: (a) Does the Veteran have a current diagnosis of fibromyalgia? If no current diagnosis is found, please address the Veteran’s reported symptoms of chronic pain and fatigue and their likely etiology, as well as the 2016 diagnosis of fibromyalgia from her private physician; (b) Is it at least as likely as not that the Veteran’s fibromyalgia had its onset during or is otherwise related to any injury or disease in service?; (c) Is it at least as likely as not that the Veteran’s fibromyalgia was (i) caused or (ii) is aggravated (i.e., worsened beyond the natural progression) by the Veteran’s service-connected disabilities, which includes anxiety disorder and numerous painful joint disorders of the knees, hips, ankles, and feet?; (d) Is it at least as likely as not that the Veteran’s fibromyalgia was (i) caused or (ii) is aggravated (i.e., worsened beyond the natural progression) by the Veteran’s sleep apnea?). A complete and fully explanatory rationale must be provided for any opinion offered. If any opinion cannot be rendered without resorting to speculation, the examiner must explain why. Additionally, the examiner must discuss and reconcile all opinions with both positive and negative evidence of record, to explicitly include a July 2016 treatment noted from Dr. C. S. noting that the Veteran’s condition was due to her sleep disturbance. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ziheng Zhu, 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.