Citation Nr: 21013268 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 17-10 707A DATE: March 9, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to his service-connected cervical spine disability and traumatic brain injury (TBI), is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1991 through December 1991, July 2005 through June 2006, October 2008 through January 2009, July 2010 through November 2010, and March 2016 through August 2016, with additional Reserve and National Guard service. This matter comes before the Board of Veterans’ Appeals (BVA or Board) on appeal from July 2014 and October 2019 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In a September 2019 decision, the Board denied entitlement to service connection for OSA. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a September 2020 Joint Motion for Partial Remand (JMPR), the parties agreed to vacate the September 2019 Board decision and remand the issue of service connection for OSA back to the Board for further consideration as consistent with the JMPR. The appeal has since returned to the Board. Entitlement to service connection for OSA, to include as secondary to his service-connected cervical spine disability and TBI), is remanded. In the September 2020 JMPR, the parties agreed that the Board made several errors in the September 2019 Board decision. The errors relevant to this remand order are discussed below. First, the Board erred in failing to satisfy its duty to assist when it failed to request from the Veteran, or seek on the Veteran’s behalf, private medical records that were identified by the Veteran in support of his claim. Specifically, the Veteran had noted in his February 2017 appeal to the Board that he was receiving care from a neurosurgeon. Despite the notification of potentially relevant medical evidence, no attempts were made to obtain this evidence. Second, the JMPR cited that the Board erred in failing to satisfy its duty to assist when it obtained an inadequate medical opinion. Specifically, the February 2017 VA examiner’s opinion was deemed to be inadequate because the negative opinion was based on the faulty conclusion that the Veteran’s neck injury in service, which resulted from an improvised explosive device (IED), was a minor injury that resolved as expected; and “it would not be likely that complications from military service events would be expected to resurface later on in life.” However, this conclusion is undermined by the fact that the Veteran is service-connected for a cervical spine disability that resulted from the IED injury. Additionally, the February 2017 VA examiner relied on “a gap of time between the injury and the onset of OSA”, between 2005 and 2013, without a continuity of the same complaints from the Veteran for the basis of the negative opinion. However, the record documents the Veteran’s complaints of poor sleep, neck pain, and snoring at a September 2009 VA examination. In addition, the VA examiner failed to address the Veteran’s lay statements alleging that his snoring and sleep problems began in-service and have continued ever since. Third, the Veteran has advanced a theory of secondary service connection for OSA due to his service-connected cervical spine and TBI disabilities. In support, the Veteran has submitted article citations supporting a relationship between OSA and cervical spine and/or TBI disabilities. However, no VA examiner has thoroughly considered whether the Veteran’s OSA was caused or aggravated by his service-connected cervical spine and/or TBI disabilities. Lastly, the Veteran’s service treatment records indicate that the Veteran exhibited respiratory issues while he was in-service and had exposure to smoke and dust while on deployment. Upon remand, a VA examiner should consider whether the Veteran’s OSA is related to his respiratory symptoms or exposure to respiratory irritants documented in-service. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for private treatments from Dr. Robert Masson, Neurosurgery. Make two requests for the authorized records from Dr. Robert Masson, unless it is clear after the first request that a second request would be futile. Clearly document for the file all attempts to procure any identified records from Dr. Masson. 2. Obtain an addendum opinion as to the nature and etiology of the Veteran’s OSA disability. The clinician is asked to opine: a) Whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran’s OSA is related to his active duty service or is otherwise related to his respiratory symptoms and exposure to respiratory irritants documented in-service. In setting forth this opinion, the examiner should consider and comment upon as necessary the Veteran’s lay statements that his snoring and sleep problems began in-service and have continued ever since. See VBMS, document labeled, STR-Medical, receipt date 4/29/2014, page 42,44 of 90, STR-Medical, receipt date 2/21/18, page 134,143 of 284, Form 9, receipt date 3/31/2017, CAPRI, receipt date 5/20/2019, page 19 of 75, CAPRI, receipt date 5/20/2019, page 121 of 137. b) Whether the Veteran’s OSA is at least as likely as not caused by his service-connected cervical spine and TBI disabilities. c) Whether the Veteran’s OSA is at least as likely as not aggravated by his service-cervical spine and TBI. Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected conditions. In considering the questions of whether the Veteran’s OSA was caused or aggravated by his service-connected cervical spine and/or TBI disabilities, the examiner is asked to address the medical articles submitted by the Veteran in support of his claim. See Form 9, receipt date 3/31/2017, page 3. If the opinion is that a service-connected disability or combination of service-connected disabilities aggravated the OSA, the examiner should specify, so far as possible, the degree of disability resulting from such aggravation. (Continued on the next page)   The examiner is asked to provide the underlying reasons for all opinions expressed, and is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. Christopher M. Collins Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.B. Mmeje, 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.