Citation Nr: 21015938 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 17-35 670 DATE: March 18, 2021 REMANDED A claim for service connection for an obstructive sleep apnea is remanded. REASONS FOR REMAND The appeal returns to the Board from a February 2020 Board’s remand for a medical opinion as to the etiology of the Veteran’s obstructive sleep apnea (OSA), which has been obtained in April 2020 but does not answer the Board’s questions. In October 2019, the Veteran testified at a Board’s hearing that he began to snore loudly and gasp for air in his sleep during service. He asserted that these symptoms had continued for the duration of service and thereafter until he was eventually diagnosed with the OSA more than 30 years after service. In the intervening years, the Veteran explains, he was not aware of what the OSA actually is and this is why he did not seek any treatment until his wife insisted that he gets checked out. The Veteran’s statements are supported by his wife’s letter received in June 2015, in which she states that she has been married to the Veteran since 1981 (during service), and that ever since, he had snored loudly, and she would have to regularly wake him up because he seemed as if he were giving out his breathing. At the hearing, the Veteran further asserted that his OSA may be etiologically related to his service-connected psychiatric disorder or another service-connected disability. Given this evidence, the Board requested a medical opinion which was obtained in April 2020 and turned out negative. However, the rationale provided in support of the rendered opinion does not fully answer the Board’s questions. In its remand instructions, the Board specifically asked the examiner to discuss whether the symptomatology reported by the Veteran (at his October 2019 Board hearing) and his wife (in a June 2015 statement) is consistent with OSA having onset during the Veteran’s service. The April 2020 examination report is devoid of the requested discussion. The report does address some of the reported symptoms, such as “snoring” and “gasping” but does not address the June 2015 statement of the Veteran’s wife that she observed the Veteran as if he were giving out his breath, which the examiner was specifically asked to discuss. The examiner then dismissed the discussed symptoms as not pathognomonic for sleep apnea, explaining that sleep apnea is diagnosed by polysomnography based on the specific frequency of apneas per hour and specific hypoxia index. However, the examiner was not asked whether the reported symptomatology adheres to the OSA diagnostic standards. Rather, the Board asked whether the symptomatology at least as likely as not (meaning probability of 50 percent or greater) is consistent with OSA having onset during the Veteran’s service. The report further states that the Veteran’s service treatment records (STRs) show no evidence of the diagnosis, treatment for sleep apnea, or polysomnography while on active duty, which is not in dispute in this appeal. However, an absence of any contemporaneous medical records documenting the disability is not the same as an affirmative negative evidence, and service connection may be granted for a disability diagnosed after service, without ever having been documented in service. Here, the examination report reflects a statement that definite risk factors for OSA include obesity, craniofacial abnormalities, and upper airway soft tissue abnormalities. However, although cited to a medical authority, nothing in the examination report connects this generalized statement to the Veteran’s specific circumstances. Further instead of meaningfully addressing the Board’s questions as to the secondary service connection, the report reflects largely the same rationale offered for the direct service connection. Yet the most value of a medical opinion is derived from its rationale which here ultimately fails to answer the Board’s questions. Accordingly, the matter is REMANDED for the following action: Obtain an addendum opinion as to the etiology of the Veteran’s obstructive sleep apnea. The examiner should be afforded access to the entire claims file, to include the hearing transcript, wife’s letter, and this remand order. If another in-person examination is necessary to answer the Board’s questions, one should be provided. The examiner is asked to answer the following questions: 1. Is it at least as likely as not (meaning probability of 50 percent or greater) that the Veteran incurred his OSA during service? Why or why not? In answering this question, the examiner should not merely consider but expressly discuss whether it is at least as likely as not that the symptomatology reported by the Veteran (at his October 2019 Board hearing) and his wife (in a June 2015 statement) is consistent with OSA having onset during the Veteran’s service and explain why or why not. 2. Is it at least as likely as not that the Veteran’s OSA was caused by any of his service-connected disabilities, to include his psychiatric disorder? Why or why not? 3. Is it at least as likely as not that the Veteran’s OSA was aggravated (made worse) by any of his existing service-connected disabilities, to include his psychiatric disorder? Why or why not? If aggravation is found, the examiner should identify a baseline level of severity of the disabilities by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the disability. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alex Bardin, 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.