Citation Nr: 21015557 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 14-05 138 DATE: March 17, 2021 REMANDED Entitlement to service connection for a sleep disorder, to include obstructive sleep apnea (OSA), is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1984 to November 1985, June to July 1993, July 1994 to August 1994, May 1999 to August 1999, and January 2002 to September 2003. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in a January 2018 hearing. This issue was previously before the Board in February 2016 and June 2018, each time remanded for further development. That development was completed, and the case has since been returned to the Board for appellate review. The Board finds there was substantial compliance with the June 2018 Board remand directives. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The June 2018 Board remand instructed the RO to obtain and associate with the claims file any outstanding VA or private treatment records (PTRs), and to provide the Veteran with a VA examination. Additional VA treatment records were successfully added to the claims file in February and July 2019, and March 2020. Additional PTRs were successfully added to the claims file in June 2018, and March and September 2019. The Veteran underwent a VA examination in June 2019. However, for the reasons stated below, remand is again required. Entitlement to service connection for a sleep disorder, to include OSA, is remanded. Remand is required for an addendum VA medical opinion. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). When a Veteran has provided competent lay statements of an in-service injury, the examiner must consider and address them when developing his rationale. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that when the Veteran has provided lay testimony of an in-service injury, an examiner cannot ignore that lay evidence and base his or her opinion that there is no relationship to service on the absence of in-service corroborating medical records). A medical opinion based upon an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The RO obtained a June 2019 medical opinion, where the examiner stated that it is less likely than not that the OSA is related to service. The examiner noted that the Veteran asserted that his OSA is related to damage caused to his sinus cavity as a result of nasogastric tubes inserted into his nose during service, but that occurred in the 1980s, and the Veteran was not diagnosed with OSA until 2008. The examiner explained that it is unlikely that the nasogastric tubes were the cause of his OSA, especially given a February 2018 private opinion that found that his OSA is not a military issue. The examiner stated that the Veteran was at risk of OSA based on his weight, body mass index (BMI), neck circumference, and a Mallampati score of 3. The examiner explained that OSA is characterized by recurrent, functional collapse during sleep of the velopharyngeal and/or oropharyngeal airways, causing a substantially reduced or complete cessation of airflow despite ongoing breathing efforts. The RO obtained an addendum July 2019 addendum opinion because the June 2019 opinion failed to address the statement the Veteran submitted by a fellow service member, as instructed by the June 2018 Board remand directives. The examiner noted that the fellow service member had stated that the Veteran started to snore during training. The examiner explained snoring is a symptom, and by itself is not sufficient to make a diagnosis of OSA. The examiner proceeded to repeat the June 2019 medical opinion. In both opinions, the examiner failed to provide sufficient supporting rationale for why the nasogastric tubes were not the cause of the OSA. The examiner simply referenced the February 2018 private opinion that found his OSA is not a military issue, which also failed to provide any supporting rationale for that conclusion. The examiner also stated that the Veteran was only forced to use nasogastric tubes during training in 1985; however, at the January 2018 Board hearing, the Veteran asserted that he also underwent the same training again in 1995, and again had difficulty using the nasogastric tubes. The examiner also failed to address the Veteran’s Board hearing testimony that his wife had known about his snoring by the time they married in 1995, or his assertions in the April 2008 PTRs indicating that his wife was significantly disturbed by his snoring and reported he had apneic spells during sleep. Accordingly, remand is required for an addendum VA medical opinion. Remand is also required to obtain missing medical records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2019). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, military records, VA medical records, and records from facilities with which the VA has contracted. 38 C.F.R. § 3.159(c)(2). Several VA treatment records indicate that outside medical records were scanned into Vista imaging. The Board does not have access to Vista imaging, so these records will need to be added to the Veteran’s claims file separately. Accordingly, remand is required to obtain missing medical records. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment, specifically all outside treatment records uploaded to Vista imaging. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 2. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of the obstructive sleep disorder from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. (a) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the obstructive sleep disorder had onset in, or is otherwise related to, active service. (b) The examiner must address the following: 1) the April 2008 PTR where the Veteran asserted his wife was disturbed by his loud snoring and apneic spells; 2) the June 2014 statement asserting that the sleep apnea is due to nasogastric tubes used during training; 3) the photos of the Veteran using the nasogastric tubes added to the claims file in February 2014; 4) the March 2016 buddy statement asserting that the Veteran did not start snoring until midway through training, and that the nasogastric tubing was very painful for the Veteran; 5) the January 2018 Board hearing testimony; 6) the February 2018 private medical opinion; and 7) June and July 2019 VA medical opinions. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rogos 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.