Citation Nr: 21010608 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 14-38 990A DATE: February 25, 2021 REMANDED Service connection for sleep apnea, to include as secondary to the service-connected posttraumatic stress disorder (PTSD) and/or traumatic brain injury (TBI) is remanded. REASONS FOR REMAND The Veteran served on active duty from October 2002 to March 2003 and from June 2004 to June 2005. The Veteran testified before a Veterans Law Judge at the June 2018 Board hearing. A complete transcript is of record. Service connection for sleep apnea, to include as secondary to the service-connected PTSD and/or TBI is remanded. The Veteran’s service connection claim for sleep apnea was previously before the Board in August 2019. The Board denied the service connection claim finding that the weight of the evidence was against the conclusion that the onset of the Veteran’s sleep apnea was during his active duty service, or was secondary to PTSD or TBI. The Veteran disagreed with that decision and appealed to the United States Court of Appeals for Veteran’s Claims (Court). The Court granted a Joint motion for Partial Remand (JMPR) vacating the portion of the August 2019 Board decision that denied the service connection claim for sleep apnea, and returning it to the Board for compliance with the JMPR. The JMPR found that while VA had obtained medical opinions regarding the etiology of the Veteran’s sleep apnea in July 2014 and in January 2019, with a clarification in May 2019, the opinions were inadequate because they did not adequately consider lay testimony provided by the Veteran and his wife, as to the onset of his sleep apnea symptoms and that remand is required so that the Veteran may be provided with a new VA examination. See Miller v. Wilkie, 32 Vet. App. 249, 260 (2020). The Board notes that the Veteran’s wife is a registered nurse and she provided a lay statement where she reported that he was a silent sleeper prior to being deployed to Iraq, but upon his return, he snored constantly through the night. She also stated that the snoring became progressively worse, starting as a low constant tone to a gagging noise. The Veteran also testified that the onset of his sleep apnea was prior to his weight gain, which the July 2014 attributed as one of the risk factors which contributed to the development of sleep apnea. The Veteran stated that he was extraordinarily physically fit and his weight was consistent during his active duty service; but testified that the medication that was prescribed, post-service, for his service-connected PTSD caused him to gain weight. He also testified that he has since lost the excess weight, but the sleep apnea symptoms have persisted. As such, the Board finds that remand is necessary to provide the Veteran a new VA examination that addresses the concerns of the September 2020 JMPR. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination with an a to determine the nature and etiology of the Veteran’s sleep apnea. The examiner should provide the following opinions: (a) Is it at least as likely as not (50 percent or greater probability) that the onset of sleep apnea was during the Veteran’s active duty service, or is proximately due to or caused by Veteran’s active duty service? Why or why not? The examiner should address the Veteran and his wife’s statements as to the onset of his sleep apnea symptoms. See Buddy Statement received September 4, 2012, Correspondence received April 27, 2013, and Correspondence received June 5, 2017. The examiner should also address the medical article submitted by the Veteran’s wife. See Third Party Correspondence received November 25, 2014. The Board notes that the Veteran’s wife is a registered nurse. The examiner should also address the private medical opinion submitted by the Veteran. See Correspondence received July 5, 2018. The examiner should also address the Veteran’s assertion that the onset of his sleep apnea symptoms was prior to any weight gain. The examiner’s attention is directed to pages 2-4 of the Court’s JMPR, which explains why the previous medical opinions were found to be inadequate. The reasons and/or risk factors which the examiner finds caused the Veteran’s sleep apnea should be fully explained. Further, any medical research cited to, should be discussed and how it is related to the specific facts of the Veteran’s case. (b) Is it at least as likely as not (50 percent or greater probability) that sleep apnea is proximately due to or caused by the service-connected PTSD and/or TBI? Why or why not? (c) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea was aggravated (made worse) by his service-connected PTSD or TBI? Why or why not? If aggravation is found, the examiner should identify a baseline level of severity of the sleep apnea by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the sleep apnea. If such cannot be done, it should be explained why. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Fu, Associate 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.