Citation Nr: 21024177 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 17-65 797 DATE: April 22, 2021 ISSUE Entitlement to service connection for sleep apnea, to include as secondary to service-connected post-traumatic stress disorder (PTSD). REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected post-traumatic stress disorder (PTSD). REASONS FOR REMAND The Veteran served from February 2002 to March 2006. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from February 2016 and October 2017 rating decisions from the Department of Veteran’s Affairs. In January 2020, the Veteran and his fiancé testified at a Travel Board Hearing before the before the undersigned Veteran’s Law Judge. A transcript of that hearing is of record. This matter was previously before the Board in February 2020. In that February 2020 decision, the Board remanded the Veteran’s claims of entitlement to service connection for (1) the residuals of a traumatic brain injury (TBI) and (2) sleep apnea, to include as secondary to service-connected post-traumatic stress disorder (PTSD) for the purpose of obtaining an updated TBI evaluation and a VA Sleep Apnea examination and medical opinion. In a January 2021 rating decision, the Veteran was granted service connection for TBI with vertigo. Therefore, that issue is no longer before the Board and has been resolved. See January 9, 2021 rating decision. In a January 2021 Supplemental Statement of the Case (SSOC), the Veteran’s claim of entitlement to service connection for sleep apnea, to include as secondary to service-connected PTSD remain denied. See January 22, 2021 SSOC. This matter has returned to the Board for appellate review. For reasons that will discussed below, the Board finds that further development is required, and the matter is remanded to the RO for further action. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for sleep apnea, to include as secondary to service-connected post-traumatic stress disorder (PTSD). The Veteran contends that his sleep apnea is related to service. See November 16, 2017 Notice of Disagreement (NOD). Alternatively, the Veteran argues that his sleep apnea was caused or aggravated by his service-connected PTSD. See January 19, 2020 Board Hearing transcript, pg. 5. As referenced in the introduction of this decision, pursuant to the Board’s February 2020 Remand, the Veteran was afforded an April 2020 VA Sleep Apnea examination and medical opinion to determine the etiology of his sleep apnea, including whether the Veteran’s sleep apnea was caused or aggravated by his service-connected PTSD. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). While this April 2020 VA Sleep Apnea examination and medical opinion appears to be adequate for adjudication purposes regarding the issue of secondary service connection, the Board find finds that the VA medical opinion is not adequate to address the issue of direct service connection for the following reasons. Addressing whether there is a causal connection between the Veteran’s current sleep apnea and his active duty service, the April 2020 VA examiner opined that the Veteran's obstructive sleep apnea less likely as not (less than 50 percent probability) had its onset in service or is otherwise related to service. In relevant part, the examiner provided the following rationale to support this opinion: “The Veteran did not exhibit symptoms consistent with OSA during active duty. Buddy statements reporting "severe snoring" and with "coughing" but it is conflicting to Veteran's own report. The Veteran reported no chronic cough in 2005. Snoring is not the same OSA. Snoring causes hoarse or harsh sound that occurs when air flows past relaxed tissues in the throat, causing the tissues to vibrate with each breathe. Nearly everyone snores now and then. Not everyone who snores has OSA….” See April 2020 Sleep Apnea Examination and Medical Opinion, pgs. 5-6. The Board observes that the examiner provided additional reasons for the negative nexus opinion, however it is critical to note that the examiner references the Veteran’s in-service snoring depicted in these buddy statements, without reference or discussion of the Veteran having difficulty breathing during sleep. The Board observes that the Veteran’s buddy statements from fellow soldiers reference the Veteran in-service snoring and having difficulty breathing during sleep. The Board underscores that the examiner does acknowledge the Veteran’s buddy statements regarding the Veteran’s snoring during service. However, the Board finds that a clarifying addendum opinion is required to address the Veteran’s buddy statements regarding difficulty breathing during service (i.e., would stop breathing for periods of time and would make weird gasping noises.). See November 2, 2017 and November 5, 2017 lay statements from fellow soldiers. See also, January 14, 2020 Board Hearing transcript (fiancé’ testimony re: difficulty breathing post-service) pgs. 4-8. Here, the import of the Veteran's report that he snored and stopped breathing during sleep continue to need discussion. Further, the Board observes that the examiner listed this information in the evidence (lay statements), however the analysis failed to discuss whether these symptoms (in-service snoring and difficulty breathing during sleep) were symptoms of his later diagnosed sleep apnea. See April 2020 Sleep Apnea Examination and Medical Opinion, pg. 4. The Board is cognizant that the VA examiner could have discounted these lay statements regarding difficulty breathing during service, however it is not clear from the rationale whether these symptoms were considered in formulating the opinion. The Board may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). As such, an addendum opinion is necessary for the examiner to consider this Veteran’s lay evidence of in-service snoring and breathing difficulties during sleep prior to adjudication of this Veteran’s service connection claim for sleep apnea, to include as secondary to his service connected PTSD. On remand, the AOJ only needs to obtain an addendum medical opinion concerning the etiological relationship between the Veteran’s sleep apnea and active service on a direct basis. Accordingly, this matter is REMANDED for the following action: 1. Return the claims file to the examiner who conducted the April 2020 VA Sleep Apnea examination and rendered the associated medical opinion. If the examiner is not available, an equally qualified professional may be consulted to obtain an addendum medical opinion. opinion. The examiner must review the claims file in conjunction therewith. An in-person examination is not required unless deemed necessary by the clinician. 2. After a review of the claims file of the Veteran, the examiner must respond to the following: (a) Is it at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran's currently diagnosed sleep apnea had its onset in service or is otherwise related to service? For purposes of this question, the examiner must consider and discuss the Veteran’s lay statements regarding the Veteran snoring during service, and difficulty breathing. See November 2, 2017 lay statement from J.Z., (Document type: Buddy/Lay Statement, Receipt Date, December 14, 2017); See also, November 5, 2017 lay statements from T.S. (Document type: Buddy/Lay statement, Receipt Date, December 14, 2017); See also January 2020, Board Hearing transcript, pgs. 4-8. Note: If the examiner has any medical reason to doubt the accuracy of the Veteran's lay statements, this should be clearly stated in the opinion, along with supporting rationale and, if possible, evidence of record. 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 against it. A detailed rationale supporting the examiner’s opinion must be provided. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. After completing the requested actions, and any additional notification and/or development deemed warranted, the issue should be readjudicated in light of all the evidence of record. If a benefit sought on appeal remains denied, the AOJ should furnish to the Veteran and his attorney an appropriate supplemental statement of the case (SSOC) and should afford them the appropriate time period for response. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Little, 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.