Citation Nr: 21009760 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 11-28 967 DATE: February 23, 2021 REMANDED Issue of entitlement to service connection for obstructive sleep apnea (OSA) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 2003 to June 2004. This appeal to the Board of Veterans’ Appeals (Board) arose from a January 2016 rating decision issued by the Department of Veterans Affairs (VA). See March 2016 Notice of Disagreement (NOD); March 2016 Statement of the Case (SOC); April 2016 Substantive Appeal (VA Form 9). The Veteran testified before the undersigned Veterans Law Judge in a July 2016 hearing. See July 2016 Hearing testimony. In March 2017, the Board granted the Veteran’s request to reopen his prior finally disallowed claim of entitlement to service connection for a sleep disorder. March 2017 Board decision. The underlying issue of entitlement to service connection for a sleep disorder, recharacterized as OSA, was remanded for further development. Id. In October 2019, the Board denied the Veteran’s claim of entitlement to service connection for OSA. October 2019 Board decision. The Veteran appeal the October 2019 Board decision to the United States Court of Appeals for Veterans Claims (CAVC) and, through a Joint Motion for Remand, the claim was remanded to the Board for further development. September 2020 CAVC decision. 1. Issue of entitlement to service connection for OSA is remanded. Pursuant to the September 2020 CAVC decision, a remand is required for substantial compliance with a remand directive in the March 2017 Board decision. The September 2020 CAVC decision found that the March 2017 Board decision remanded the Veteran’s claim of entitlement to service connection for OSA for an opinion on whether there is a medical link between the Veteran’s current OSA disability and service, to include in-service environmental exposures, such as burning pits, while station in the Southwest Asia theatre of operations. CAVC found that, while the August 2019 VA examiner opined that the Veteran’s OSA was less likely than not incurred in or caused by “the claimed in-service injury, event, or illness,” the examiner did not discuss or appear to consider the Veteran’s testimony about his environmental exposures as directed by the March 2017 Board decision. Id. In addition, CAVC held that the August 2019 VA examination is also inadequate because the examiner did not explain why the passage of time between separation and diagnosis of OSA and finding weight gain as a contributing factor would mean that OSA could not have been related to service. Id. The Board, thus, finds that an addendum opinion by a VA examiner is needed. The matters are REMANDED for the following action: 1. If possible, obtain an addendum opinion from the same VA examiner who provided the August 2019 VA examination for sleep apnea. If not possible, obtain an addendum opinion from an appropriate medical professional to determine the nature and cause of the Veteran’s OSA. 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 OSA began in (or is otherwise related to) the Veteran’s military service? The examiner should consider and discuss the lay evidence regarding any pertinent complaints and symptoms related to sleep apnea. For the purposes of providing this opinion, the examiner should take any symptoms that a lay person would be qualified to report as true. In other words, even if the Veteran was not diagnosed with sleep apnea until 2015, would the medical and lay evidence support that the Veteran’s OSA is at least as likely as not incurred in or otherwise related to service? The examiner should specifically discuss the Veteran’s testimony during the July 2016 Board hearing that he had environmental exposures while stationed in Southwest Asia during service, including fumes from burn pits, which he believes caused his current OSA disability. The Veteran also testified that his ability to sleep worsened during service due to snoring, running nose, and eye problems. The examiner should also consider and discuss the March 2016 buddy statements provided by two service members who were housed with the Veteran during service and relate that he had snored loudly and seemed to stop breathing. A detailed explanation (rationale) is requested, including citing to supporting clinical data (and/or medical literature), as appropriate. 2. Readjudicate the appeal. 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.