Citation Nr: 21014993 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 16-11 509A DATE: March 16, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran had active duty service from July 2002 to January 2003 and from January 2004 to March 2005, including service in Southwest Asia. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This case was remanded to the Agency of Original Jurisdiction (AOJ) in October 2018. Unfortunately, due to the reasons that follow, another remand is required. Although the Board sincerely regrets this additional delay, it is necessary to ensure that the Veteran is afforded adequate due process and every possible consideration. 1. Entitlement to service connection for sleep apnea, to include as a medically unexplained chronic multisymptom illness is remanded. The Veteran underwent a Gulf War VA examination in February 2013. The examiner noted that the Veteran had no respiratory conditions. A supplemental opinion was obtained in May 2019. The examiner provided a negative nexus opinion, and noted that there was no diagnosis of sleep apnea with a clinical overnight study in a sleep lab. However, as the examiner noted, the Veteran completed an overnight home study in August 2012 and was prescribed use of a CPAP machine. The August 2012 note indicates that “biological signals recorded were nasal pressure, nasal air flow by thermistor, pulse oximetry,…body position, …pulse rate, and snoring.” “All scoring was performed manually by a registered PSG technologist based on published CMS and AASM definitions without EEG criteria…[and] all raw data and scoring was reviewed by a board certified sleep specialist.” The Veteran was diagnosed with sleep apnea, and the note indicates that “the diagnosis is clinical.” At the time, the Veteran had an AHI of 2.18 with average desaturation of 88 percent and lowest desaturation of 79 percent. The CPAP data in December 2014 showed an AHI of 10.4. The May 2019 examination report does not adequately explain why these annotations and data are inadequate to make a diagnosis of sleep apnea and why a laboratory performed sleep study is required in this particular case. On remand, a supplemental medical opinion is needed. The matters are REMANDED for the following action: 1. Obtain a supplemental opinion from an appropriate VA medical professional (“clinician”) to determine the nature and etiology of the Veteran’s respiratory disability, to include sleep apnea. If the clinician determines that he or she cannot respond to the below inquiries as set forth in detail below without examination of the Veteran, the Veteran should be afforded such an in-person examination, or by other means if an in-person examination is not feasible. The clinician is asked to address the following: (a.) Identify a diagnosis for any sleep disorder present during the relevant appeal period (July 2013 to present). Specifically confirm or rule out sleep apnea. The examiner’s attention is directed to VA treatment records from August 2012, December 2014, and the problem lists and medical history listing sleep apnea as a diagnosis, and acknowledge review of such. If the examiner determines that the Veteran does not have a diagnosis of sleep apnea, the examiner must address this evidence. (b.) For any diagnosis identified, state whether it is at least as likely as not (50 percent likelihood or greater) that the disability arose during or within one year of separation from active service, and/or whether it is at least as likely as not related to an in-service injury, event, or disease, including environmental exposures in Southwest Asia. The examiner’s attention is directed to lay statements submitted in March 2016 from the Veteran’s parents, wife, and a fellow servicemember who served with the Veteran, indicating symptoms such as snoring with onset in Iraq, and that the Veteran stopped breathing at night and when awake, sounds of choking, and daytime sleepiness; as well as a March 2015 e-mail from the Veteran to his treatment provider noting that he catches himself not breathing at times during the day while awake and inquiring about central sleep apnea. (c.) If the VA clinician determines that the Veteran does not have a sleep apnea diagnosis, the examiner is to clarify what criteria/symptoms for such a diagnosis are lacking; and explain whether and why the examiner disagrees with the diagnoses in the record. A complete rationale for any opinion expressed must be provided. An examiner’s report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. 2. After completing the above, and conducting any additional development deemed necessary in light of the expanded record, readjudicate the Veteran’s claim of entitlement to service connection for sleep apnea. If the benefits sought on appeal are not granted to the Veteran’s satisfaction, issue the Veteran and his representative a supplemental statement of the case and afford them an opportunity to respond before returning the appeal to the Board, if in order. A. SOLOMON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Smith, 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.