Citation Nr: 21013465 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 14-35 365 DATE: March 9, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran had active service from April 2001 to April 2005. He served in Iraq from March 2003 to December 2003. This matter comes to the Board of Veterans’ Appeals (Board) on an appeal from a September 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, the Agency of Original Jurisdiction (AOJ). This issue was previously before the Board in May 2018 at which time it was remanded for further development. This matter was again before the Board in May 2020 at which time it was again remanded for further development. The Board's remand directives and the subsequent actions by the AOJ will be discussed below. This issue has been returned to the Board for further appellate consideration. 1. Entitlement to service connection for sleep apnea is remanded. The Veteran’s claim asserted that he has a sleep disorder, to include sleep apnea and hypoventilation/hypoxia, that is related to his in-service exposure to burn pits while serving on active duty in Iraq. In December 2020, service connection for hypoventilation/hypoxia was granted with a non-compensable evaluation. The AOJ noted that this disability is not specifically listed in the rating schedule; therefore, it is rated analogous to a disability in which not only the functions affected, but anatomical localization and symptoms, are closely related. 38 C.F.R. § 4.20. Therefore, the only remaining issue is whether service connection for sleep apnea is warranted on a direct basis or as secondary to service-connected disability. The Veteran’s service treatment records show that in October 2003, following his deployment to Iraq, the Veteran reported dyspnea, heart palpitations, and headaches. In an October 2012 statement, the Veteran’s wife reported that the Veteran had noticeable sleep problems, including difficulty falling asleep, awakening several times through the night, loud snoring, and respiratory interruption, which symptoms began following his return from deployment in Iraq. The Veteran was afforded a VA examination in February 2013. The examiner noted a diagnosis of hypoventilation/hypoxemia pursuant to a June 2, 2011 sleep study but not a diagnosis of sleep apnea. The examiner stated the June 2011 sleep study did not show a diagnosis of sleep apnea but rather “moderate sleep related respiratory impairment with mild oxygen desaturation” and the Veteran was prescribed a CPAP. The examiner opined it was less likely than not the Veteran’s sleep disorder incurred in or was caused by service. The rationale provided was there is no objective evidence to support the Veteran having sleep apnea that was incurred in or caused by military service. In a May 2018 decision, the Board found the February 2013 VA examination was inadequate as the VA examiner did not provide a sufficiently detailed rationale for the opinions expressed. The Board remanded the issue so the Veteran could be scheduled for a new VA examination to determine the etiology of any diagnosed sleep disorders. The Veteran was provided a VA examination in October 2019. The examiner noted a diagnosis of obstructive sleep apnea dated 2011 as confirmed by a sleep study. The examiner framed the claimed condition as “sleep apnea associated with sleep disorder to include hypoventilation/hypoxia,” although the exam request stated the issue as “evaluation of sleep disorder, to include sleep apnea and hypoventilation/hypoxia.” The Restatement of Requested Opinion framed the issue as “Medical opinion 1 of 1) Please complete section three and state whether the veteran's medical records support that any currently diagnosed condition(s) related to the veteran's claimed sleep apnea associated with sleep disorder to include hypoventilation/hypoxia, is/are at least as likely as not (50 percent or greater probability) etiologically related to his active service, to include exposure to toxins while serving in Southwest Asia.” The Veteran reported symptoms of snoring while stationed in Iraq in 2003. The examiner noted that he had a formal study in June 2011 confirming OSA. He has been on CPAP since that time with good clinical response. The examiner noted a 50-pound weight gain by the Veteran since leaving service in 2005. The examiner opined it was less likely than not the Veteran’s sleep apnea was incurred in or caused by an in-service injury, event, or illness. The rationale provided was that the Veteran’s claimed sleep apnea cannot be clearly linked to his active service, to include exposure to toxins while serving in Southwest Asia. The examiner also stated there are no medical records found which support such a nexus. In a May 2020 decision, the Board found the October 2019 examiner’s medical opinion inadequate. Among other things, the Board found that the examiner had not provided an opinion as to whether the Veteran’s diagnosed hypoventilation/hypoxia was caused by or related to the Veteran’s active service, to include exposure to toxins in Southwest Asia. The Board remanded for an addendum opinion as to the etiology of all diagnosed sleep disorders. An addendum opinion was provided in December 2020. The examiner noted that the Veteran’s DD-214 confirms participation in Operation Iraqi Freedom. The examiner noted a diagnosis of hypoventilation/hypoxemia on June 2, 2011. The examiner noted a diagnosis of sleep apnea on October 27, 2019, pursuant to a Disability Benefits Questionnaire. The examiner noted that on November 20, 2017, a nurse practitioner noted a diagnosis of sleep apnea during a visit related to a need for a new CPAP machine. A medical note dated August 8, 2018, also indicates a diagnosis of obstructive sleep apnea. Also, a pulmonologist indicated that his clinical impression was sleep apnea. The examiner noted that burn pits are associated with asthma, chronic bronchitis, constrictive bronchiolitis, coughing that does not subside and respiratory difficulty, all of which can cause hypoventilation/hypoxia. Therefore, the examiner opined that the Veteran’s hypoventilation/hypoxia symptoms are as least as likely as not proximately due to his exposure to burn pits during service. The examiner opined that there is no pathophysiological association that documents burn pits exposure as a nexus for OSA, therefore it is less likely than not the veteran's OSA is proximately due to his burn pit exposure during service. The Board notes that the June 2011 sleep study diagnosed hypoventilation/hypoxia but did not diagnose obstructive sleep apnea and in fact ruled it out based on the results of the study. While subsequent medical providers opined that the Veteran experienced sleep apnea, any medical opinions based on a finding of a diagnosis of sleep apnea in the absence of a sleep study or confirming such diagnosis are inherently inadequate as based on inaccurate factual findings. Reonal v. Brown, 5 Vet. App. 458 (1993); Barr v. Nicholson, 21 Vet. App. 303 (2007). The outcome of the Veteran’s claim for service connection for a sleep disorder is dependent on the existence of a current disability and the link of such disability to service, and while the diagnosis of sleep apnea has been “noted” in subsequent records, it has not been confirmed. In addition, a claim for sleep apnea as secondary to the Veteran’s service-connected hypoventilation/hypoxia has been raised by the record. For these reasons, the Board finds that a remand is required for a new VA examination and opinion. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination to determine the nature and etiology of any diagnosed sleep disorder, to include sleep apnea. The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. (a) Following a review of the record, including the sleep study of 2011, and examination of the Veteran, confirm whether a diagnosis of sleep apnea or other sleep disorder is warranted. (b) If sleep apnea or other sleep disorder is diagnosed, the examiner is asked to opine as to whether it is as least as likely as not (50 percent probability or more) that any sleep disorder, including sleep apnea, had its onset in service or is otherwise the result of an incident in service. (c) If sleep apnea or other sleep disorder is diagnosed, the examiner is also asked to opine as to whether it is as least as likely as not (50 percent probability or more) that any sleep disorder, including sleep apnea was caused or aggravated by the Veteran’s service connected hypoventilation/hypoxia. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Debra B. McLoughlin, 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.