Citation Nr: 21025449 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 16-35 219A DATE: April 28, 2021 REMANDED Entitlement to service connection for sleep apnea, including as secondary to a service-connected headache disability, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1990 to November 2010. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a July 2014 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In October 2018, the Board remanded the claim for additional development. Entitlement to service connection for sleep apnea, including as secondary to a service-connected headache disability, is remanded. VA has a duty to ensure any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (overruled on other grounds, Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)). A medical opinion is adequate where it is based upon consideration of the full medical history and describes a disability in sufficient detail so that the Board’s evaluation will be fully informed. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). In January 2014, the Veteran filed a claim seeking service connection for sleep apnea. She asserted the condition was secondary to a service-connected headache disability. VA treatment records include an October 2013 neurology clinic treatment note and a pulmonary outpatient consult which indicate a connection between chronic headaches and sleep apnea. February 2017 private treatment records, from Baylor Scott & White Health, describe an association between sleep disruptions and headaches. In support of this claim, the Veteran also submitted lay statements from T. C.,M. P., and A. B., who had observed her sleeping during her active duty service. These statements described the Veteran snoring and gasping, with pauses in breathing, while she slept. T. C, M. P., and A. B. also observed the Veteran appeared to be fatigued during the daytime. In July 2014, a VA sleep apnea examination was provided. The examiner diagnosed sleep apnea and opined the condition was less likely than not proximately due to service-connected headaches. He explained that sleep apnea was caused by “mechanical obstruction of the upper airway during sleep.” The examiner did not opine as to whether sleep apnea was aggravated beyond its natural progression by headaches. This opinion is inadequate to evaluate the issue of secondary service connection as it does not address both causation and aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136, 138 (2013). In June 2016, an additional VA etiology opinion, evaluating direct service connection was obtained. The VA examiner noted lay statements from T. C., M. P., and A. B. He opined the Veteran’s sleep apnea was less likely than not “incurred in or caused by loud snoring and gasping for air during sleep during service.” He explained that the symptoms of snoring and gasping were “nonspecific symptoms” and a diagnosis of sleep apnea required polysomnography (a sleep study). A sleep study was not conducted during the Veteran’s active service. The examiner also noted, during an October 2013 VA pulmonary outpatient consult, the Veteran reported her symptoms had been present over the previous two years, a post service time period. He further stated obesity was “the major risk factor” associated with sleep apnea and he observed, at the time of the examination, the Veteran was obese. He opined sleep apnea was caused and aggravated by “post service weight gain/morbid obesity.” The Board find’s the June 2016 examiner’s rationale is insufficient to support his opinion. The examiner’s statements as to the presence of in-service snoring and gasping are inconsistent. Moreover, his reliance on the absence of a sleep study during active service is not sufficient to show the condition, or symptoms of the condition, were not present during service. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (that reports of symptomatology are not supported by contemporaneous clinical evidence does not render them inherently not credible.) In addition, the June 2016 examiner identified obesity and post service weight gain as the likely cause of sleep apnea. However, the service treatment records document the Veteran’s BMI (body mass index) measurement was, at times, greater than 30 during her active service. Thus, it appears the risk factor of obesity may have been present during her active service. It is not clear that the etiology opinion is based on an accurate medical history. See Stefl, supra. Finally, the Board notes VA treatment records refer to a November 2013 sleep study performed at Heart Hospital of Austin. This sleep study is not yet associated with the claims file. Under the duty to assist, VA must make reasonable efforts to assist the Veteran in obtaining this relevant evidence. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any medical treatment provider, including Heart Hospital of Austin, who may have records relevant to her claim (including a November 2013 sleep study). Make two requests for the authorized records from any treatment provider identified, unless it is clear after the first request that a second request would be futile. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s sleep apnea was at least as likely as not (a degree of probability of 50% or higher) onset during her active service or is at least as likely as not causally related to her active service. The examiner must specifically discuss reports from T.C., M.P., and A.B., that the Veteran snored and gasped for breath while sleeping during her active service. If the examiner attributes sleep apnea to post service weight gain, he or she should fully discuss whether the Veteran was obese during her active service and explain why sleep apnea would be attributed to post service weight gain rather than her in-service weight. The clinician is advised that the Veteran and other lay persons are competent to report hearing snoring, being told that they are snoring, and feeling fatigued. If the examiner dismisses any lay reports of snoring or fatigue, a complete rationale for doing so must be provided. The clinician is also advised that the absence of contemporaneous treatment records (including diagnostic testing) is insufficient, without additional rationale, to dismiss reports of symptomatology The clinician is also asked to opine whether sleep apnea is proximately due to or aggravated beyond its natural progression by the service-connected headache disability. He or she should discuss the October 2013 VA neurology clinic note and pulmonary outpatient note and February 2017 private treatment records describing a relationship between these conditions. Aggravation and causation are distinct are distinct theories and must be addressed separately and independently of each other. The clinician’s report must include a complete rationale for the opinions provided. If the clinician cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and explain why an opinion cannot be provided without resorting to speculation. If the clinician determines the opinions requested cannot be provided without an additional examination, schedule an examination. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jeanne Celtnieks 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.