Citation Nr: 21014661 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 19-03 993 DATE: March 15, 2021 REMANDED Entitlement to service connection for a sleep disorder, to include upper airway resistance syndrome and sleep apnea, to include as secondary to pain caused by the Veteran’s service-connected headaches, degenerative joint disease of the right knee, left ankle sprain, gastroesophageal reflux disease and hiatal hernia, cervical spine degenerative arthritis, tinnitus, bilateral pes planus, hypertension, and right knee residual scar is remanded. REASONS FOR REMAND The Veteran served honorably on active duty in the United States Navy from July 1982 to July 1988, February 1997 to June 1997, June 1997 to December 2006, and November 2011 to September 2012. This case comes before the Board of Veteran’s Appeals (Board) on appeal from a September 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran has claimed entitlement to service connection for sleep apnea. During his service, the Veteran was diagnosed with upper airway resistance syndrome; the Veteran alternatively contends that he is entitled to service connection for that disability as well. Accordingly, the Board has recharacterized the Veteran’s claim for entitlement to service connection for sleep apnea, more broadly, as a claim of entitlement to service connection for a sleep disorder, to include upper airway resistance syndrome. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a disability claim includes any disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record). Entitlement to service connection for a sleep disorder, to include upper airway resistance syndrome and sleep apnea, to include as secondary to pain caused by the Veteran’s service-connected headaches, degenerative joint disease of the right knee, left ankle sprain, gastroesophageal reflux disease and hiatal hernia, cervical spine degenerative arthritis, tinnitus, bilateral pes planus, hypertension, and right knee residual scar is remanded. A remand is warranted for a new VA examination and medical opinion. In November 2018, the Veteran was afforded a VA examination. The Veteran was diagnosed with obstructive sleep apnea in November 2015. The VA examiner opined that the Veteran’s obstructive sleep apnea was not caused by treatment for snoring with uvulopalatopharyngoplasty (UPPP) during service. The VA examiner reviewed the Veteran’s service records and medical literature. The Veteran was diagnosed and treated with mild obstructive sleep apnea in November 2015, which was many years after service. While on active duty, the Veteran was diagnosed and treated for snoring with airway resistance; however, the polysomnogram was negative for obstructive sleep apnea. The VA examiner concluded that the Veteran did not have obstructive sleep apnea while on active duty. Medical literature stated that obstructive sleep apnea occurred when the muscles in the back of the throat relaxed, which caused the airway to narrow or close when breathing in. Factors that increased the risk of this form of sleep apnea included excess weight, a thicker neck circumference, a narrowed airway, being a male, being older, the use of alcohol, smoking, and nasal congestion. The VA examiner explained that the Veteran met many of the risk factors for the development of obstructive sleep apnea, such as being overweight with a body mass index (BMI) of 28, being male, and being older. The Board finds that this November 2018 VA medical opinion is inadequate. First, the Veteran’s service treatment records show that he sought treatment for severe snoring in October 1999. A polysomnogram was conducted, and the examiner noted that the Veteran seemed to have a component of upper airway resistance syndrome. The following month, the Veteran had UPPP to alleviate his difficulty with breathing during sleep. Thereafter, the Veteran continued to have insomnia. The May 2018 VA examination/opinion is inadequate because it did not consider the Veteran’s continued complaints of breathing problems during sleep after service. The examiner also did not discuss how the Veteran’s in-service diagnosis of upper airway resistance syndrome was related to his current diagnosis of obstructive sleep apnea or whether the Veteran’s sleep apnea was a progression of his diagnosis of upper airway resistance syndrome in service. Moreover, the Veteran also asserts that he is entitled to service connection for upper airway resistance syndrome. As such, a remand is warranted for a new VA examination to determine if the Veteran currently has upper airway resistance syndrome and whether it is related to his military service. Additionally, the Veteran asserts that his sleep disorder is related to pain caused by his service-connected disabilities. A new opinion is needed to address the theory of secondary service connection. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s sleep disorder. All necessary tests should be performed, including a sleep study and/or pulmonary function test if it is needed. The VA examiner should review a copy of this remand and the claims file. The examiner should consider the following: (a.) List all of the Veteran’s current sleep disorders, to include obstructive sleep apnea and upper airway resistance syndrome. The examiner should state whether the Veteran currently has a diagnosis of upper airway resistance syndrome. (b.) Is it at least as likely as not that the Veteran’s sleep disorder, to include obstructive sleep apnea and upper airway resistance syndrome, is related to his military service? The VA examiner must discuss the following: a. The fact that the service treatment records show that the Veteran was diagnosed with upper airway resistance syndrome, had UPPP, and had complaints of problems sleeping. b. The Veteran’s lay statements that he had sleep problems ever since service and that his diagnosis of upper airway resistance syndrome in service progressed to sleep apnea. Specifically, the Veteran asserts that he suffered from breathing problems during service, and his condition progressed which led to a diagnosis of sleep apnea in 2015. c. The medical article the Veteran submitted in January 2019 that suggests a link between upper airway resistance syndrome and sleep apnea. (c.) Is it at least as likely as not that the Veteran’s diagnosed sleep disorder, to include upper airway resistance syndrome (if diagnosed with such) and sleep apnea, are related to, caused by, proximately due to, and/or aggravated by the pain caused by the combination of his service-connected disabilities or the individual nature of each service-connected disability, which include headaches, degenerative joint disease of the right knee, left ankle sprain, gastroesophageal reflux disease and hiatal hernia, cervical spine degenerative arthritis, tinnitus, bilateral pes planus, hypertension, and right knee residual scar? All opinions must be supported by a sufficient rationale. A negative opinion cannot be solely based on a lack of medical evidence. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Crawford, 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.