Citation Nr: 21012342 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 16-54 399 DATE: March 4, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea, including as secondary to a service-connected disability is remanded. Entitlement to service connection for dyspnea is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Air Force, from February 1982 to May 2007. This appeal to the Board of Veterans’ Appeals (Board) is from a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In November 2019, the Board denied the Veteran’s service-connection claim for dyspnea and remanded the issue of service connection for obstructive sleep apnea. On appeal, the U.S. Court of Appeals for Veterans Claims (CAVC) issued a September 2020 Order that vacated the Board’s prior November 2019 denial on the issue of service connection for dyspnea, and remanded the matter to the Board. The Court’s Order granted a September 2020 Joint Motion for Partial Remand (JMR) filed by both VA and Appellant (“the Parties”). The JMR did not disturb the Board’s remand of service connection for sleep apnea. The issues listed in the Order section are again before the Board for consideration. 1. Entitlement to service connection for obstructive sleep apnea, including as secondary to a service-connected disability. The Veteran has a current disability of obstructive sleep apnea, found in a June 2014 private sleep study. In the Veteran’s February 2017 notice of disagreement, he asserted that his sleep apnea was “secondary to lumbar spine.” Similarly, in a November 2015 statement, the Veteran further asserted that his sleep apnea has been associated with his other service-connected disabilities as well. He also believes sleep apnea is attributable to in-service burn pit exposure. See November 2017 representative’s statement. The Board remanded the sleep apnea claim for the AOJ to arrange for a VA medical opinion to address the possibility of secondary service connection. However, on remand, a January 2020 VA medical opinion was provided against the notion that obstructive sleep apnea was due to or related to his service-connected low back disability. However, the examiner did not address possibility that the Veteran’s service-connected low back disability may have aggravated his obstructive sleep apnea. The VA physician did not discuss the possibility of secondary service-connection as due to or aggravated by any other service-connected disability, such as his service-connected posttraumatic stress disorder (PTSD), traumatic brain injury (TBI), cervical spine disability, bilateral knee disabilities, and hypertension, etc. Further, the rationale for the opinion appears vague and limited, such that it is unclear if the VA physician conducted an adequate review and consideration of the claims file. When VA undertakes to examine a Veteran, VA is obligated to ensure that that examination is adequate. See Barr v. Nicholson, 21. Vet. App. 303 (2007). Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions. Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). 2. Entitlement to service connection for dyspnea. The Veteran contends he has dyspnea, or shortness of breath, related to in-service exposure to burn pits. See November 2017 representative’s statement. In this case, an August 2016 VA examiner opined, “Although the Veteran reports of dyspnea, there is currently insufficient evidence to endorse a respiratory condition of dyspnea, and it is less likely as not (50 percent or less probability) incurred in or caused by burn pit exposure in Afghanistan and/or complaints of dyspnea, hard breathing and chest pain during service.” However, the September 2020 JMR found that the August 2016 VA examination and opinion was inadequate, because it: (1) failed to consider medical records indicating the presence of dyspnea (shortness of breath) both in-service and following service; and (2) failed to consider the Veteran’s statements concerning his symptoms after exposure to burn pits in 2004. Per the JMR, the Board remands to the AOJ to ensure an adequate VA examination and medical nexus opinion is obtained to consider his previous diagnoses of dyspnea and shortness of breath as well as address his statements regarding symptoms and exposure to burn pits. The matters are REMANDED for the following action: 1. Obtain a VA medical opinion by an appropriate clinician, and who has not previously provided an opinion in this appeal, to determine the nature and etiology of obstructive sleep apnea. The examiner should indicate that the record was reviewed. The examiner must consider any competent lay statements by the Veteran on the history of his sleep problems. On review of the record, the examiner should express an opinion on whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s sleep apnea: (A) was caused by or otherwise etiologically related to his active service. (B) was caused and/or aggravated by his service-connected lumbar spine disability. (C) was caused and/or aggravated by any other service-connected disability (e.g., PTSD, TBI, cervical spine disability, bilateral knee disabilities, and/or hypertension, etc.). A complete rationale should be provided for all opinions rendered. 2. Obtain a VA examination and medical opinion by an appropriate clinician, and who has not previously provided an opinion in this appeal, to determine the nature and etiology of the Veteran’s claimed dyspnea. The examiner should indicate that the record was reviewed. The examiner should elicit and consider the Veteran’s lay statements on the history of his related problems. All diagnostic testing deemed to be necessary by the examiner should be accomplished. The examiner should provide the following: (A) Identify all currently diagnosed disabilities, including confirming whether the Veteran currently has dyspnea. If dyspnea is not present, the examiner should reconcile previous diagnoses of dyspnea(shortness of breath). (B) The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater) that any diagnosed disability is related to service. A complete rationale should be provided for all opinions rendered. The examiner should also reconcile any competent lay statements regarding   symptoms of breathing problems and exposure to burn pits. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Biswajit Chatterjee, 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.