Citation Nr: 21014303 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 15-12 257A DATE: March 11, 2021 REMANDED Entitlement to service connection for a sleep disorder, to include obstructive sleep apnea, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 2002 to December 2008, with additional Reserve service, including periods of ACDUTRA. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision. In March 2019, the Board remanded this matter for further development. 1. Entitlement to service connection for a sleep disorder, to include obstructive sleep apnea, is remanded. In March 2019, the Board remanded this matter for VA opinion regarding whether the Veteran’s sleep disability is related to service or secondary to a service-connected disability, to include any related pain. The Veteran’s service-connected disabilities include PTSD, migraines, a back disability and related radiculopathies, bilateral knee disabilities, TBI, bilateral shin splints, and residuals of a crush injury, including right hand neuropathy. The Veteran underwent VA examination in October 2019. The VA examiner noted the Veteran’s 2018 diagnosis of obstructive sleep apnea and noted the Veteran’s reports of loud snoring and daytime hypersomnolence during active duty. The VA examiner reported that the requested medical opinion could not be provided. The VA examiner explained that the Veteran’s service treatment records were silent for a work-up for, or diagnosis of, sleep apnea. The VA examiner explained that the diagnosis of sleep apnea was after active duty service, during a time in the Reserves. In May 2020, an addendum was obtained from the October 2019 VA examiner. Although it appears from the rationale that the VA examiner’s opinion was negative, the language of the opinion is unclear. The examiner opined that it is as less as likely as not that the Veteran’s sleep apnea is related to service, including the Veteran’s 2014 head trauma. The examiner explained that the Veteran has risk factors for sleep apnea, including obesity and chronic bronchitis, that are not shown in the service records, and that the Veteran was not diagnosed with sleep apnea until 2018. The May 2020 opinion is inadequate. The rationale is insufficient and appears to be based on an inaccurate factual premise. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The VA examiner notes that the Veteran has chronic bronchitis which is a risk factor for sleep apnea which was not listed in the service treatment records. However, the Veteran was treated for bronchitis in November 2007, during service. In addition, the VA examiner noted that a major risk factor for sleep apnea is sedating medications but did not address the Veteran’s medications during service, including oxycodone and hydrocodone. In addition, the VA examiner did not address the Veteran’s reports of loud snoring and daytime hypersomnolence during active duty, including whether the reported symptoms indicate an onset of sleep apnea during service or whether his current sleep apnea is related to such symptoms regardless of onset. An August 2008 post-deployment questionnaire notes problems sleeping and still feeling tired after sleeping. The VA examiner also did not have the opportunity to address the Veteran’s later reports regarding trouble breathing since deployment and exposure to environmental hazards during service in the Gulf. In light of the above, remand is warranted to obtain additional VA medical opinion regarding whether the Veteran’s sleep apnea is related to service. See Stegall v. West, 11 Vet. App. 268 (1998). In the May 2020 addendum, the VA examiner also opined that it is as less as likely as not that the Veteran’s sleep apnea is caused by or aggravated by his service-connected disabilities. The VA examiner explained that the Veteran’s sleep apnea is related to his obesity and chronic bronchitis. The VA examiner further explained that poor quality of sleep (as noted in the Veteran’s treatment records as associated with headaches) is not synonymous with sleep apnea or its symptoms. The May 2020 opinion is inadequate. The VA examiner noted that a major risk factor for sleep apnea is sedating medications but did not address the Veteran’s medications for his numerous service-connected disabilities, including medications for his service-connected knees, back, and PTSD. The VA examiner also did not address treatment records noting sleep problems associated with the Veteran’s PTSD and chronic pain. See April and July 2015 VA Treatment Records. In light of the above, remand is warranted to obtain additional VA medical opinion regarding whether the Veteran’s service-connected disabilities caused or aggravated his sleep apnea. See Stegall v. West, 11 Vet. App. 268 (1998). While this matter is on remand, outstanding VA treatment records should be obtained, including VA treatment records from November 2020 to the present. The matters are REMANDED for the following action: 1. Obtain any additional VA treatment records, to include VA treatment records from November 2020 to the present. Associate with the claims file all potentially relevant documents scanned into Vista Imaging or CPRS but not associated with the Veteran’s claims file. 2. After outstanding records are obtained to the extent possible, ask the appropriate examiner to review the Veteran’s file. The necessity of an in-person examination is left to the discretion of the examiner. The examiner should identify whether the Veteran has a sleep disability other than sleep apnea that is separate and apart from the Veteran’s service-connected disabilities. The examiner should opine regarding whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s sleep apnea (and any other identified sleep disability separate from the Veteran’s service-connected disabilities): (a) began during active duty or ACDUTRA; (b) is the result of a disease or injury in active duty or ACDUTRA; or (c) is caused by or aggravated by his service-connected disabilities. 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 condition. The examiner should consider all medical and lay evidence of record, including the May 2020 VA examiner’s statement that sedating medications and chronic bronchitis are risk factors for sleep apnea, the November 2007 STRs regarding bronchitis, the Veteran’s medications during service, the Veteran’s medications for his service-connected disabilities, the Veteran’s reports of loud snoring and daytime hypersomnolence during active duty, the August 2008 post-deployment questionnaire noting problems sleeping and still feeling tired after sleeping, the Veteran’s reports regarding trouble breathing since deployment and exposure to environmental hazards during service in the Gulf, the records regarding the November 2014 head injury during a period of ACDUTRA, and treatment records noting sleep problems associated with the Veteran’s PTSD and chronic pain. If the Veteran’s reports are discounted, the examiner should provide a rationale for doing so (e.g., whether there is any medical reason to accept or reject his contentions). The examiner is asked to explain the reasons behind any opinions expressed. The examiner 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 it is to find against it. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Purcell 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.