Citation Nr: 21027594 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 16-61 178 DATE: May 6, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea, including as secondary to service-connected sinusitis, is remanded. REASONS FOR REMAND The Veteran had active service from October 1989 to October 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which, in relevant part, denied service connection for sleep apnea. The Veteran testified before Veterans Law Judge (VLJ) T.K. in May 2020. A copy of the transcript has been reviewed and associated with the claims file. This matter was denied in a June 2020 Board decision. The Veteran, by counsel, submitted a motion for reconsideration in June 2020 for the denial of service connection for obstructive sleep apnea. This motion was granted by the Board in January 2021 and was assigned to the undersigned expanded panel of VLJs pursuant to 38 U.S.C. § 7103(b)(1)(A). The Board notes that the issue of entitlement to an increased rating for the Veteran's service-connected sinusitis will be adjudicated in a separate decision by VLJ T.K. See 38 C.F.R. § 20.604. Entitlement to service connection for obstructive sleep apnea, including as secondary to service-connected sinusitis, is remanded. The Veteran has been diagnosed with obstructive sleep apnea and asserts that it was incurred in service and/or secondary to his service-connected sinusitis. The Veteran testified at a hearing in May 2020. He indicated that he suffered from problems with sleeping in service, which continued after service. He initially believed that his sleeping difficulties and snoring were due to his sinusitis. In the June 2020 motion for reconsideration, the Veteran, by counsel, asserted that his obstructive sleep apnea may be secondary to his service-connected sinusitis and included a submitted article regarding the connection between sleep disruption and chronic rhinosinusitis. A VA examination was performed in November 2015, at which time the examiner concluded that the Veteran's obstructive sleep apnea was not related to any exposure event during his service in the Southwest Asia theatre of operations. After a review of the evidence, the Board finds that this VA examination is insufficient to determine the present claim. In this regard, hearing testimony and evidence submitted after the VA examination indicate that the Veteran's obstructive sleep apnea may have commenced in service and/or may have been caused and/or aggravated by his service-connected sinusitis. Accordingly, the Board finds that a new VA examination is warranted on remand in order to determine the etiology of the Veteran's obstructive sleep apnea, including whether it is secondary to his service-connected sinusitis. The matter is REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran's updated VA treatment records from June 2020 to the present. 2. After completion of #1, schedule the Veteran for a VA examination to determine the nature and etiology of his obstructive sleep apnea. The claims file, including a copy of this remand, must be reviewed and such review should be noted in the examination report. The examiner should respond to the following: A. Is it at least as likely as not (probability of at least 50 percent) that the Veteran's obstructive sleep apnea had its onset in and/or is otherwise etiologically related to his period of active service, including due to any exposures in the Southwest Asia theatre of operations? B. If not directly related, is it at least as likely as not (probability of at least 50 percent) that his obstructive sleep apnea was caused by his service-connected sinusitis? If not, is it at least as likely as not (probability of at least 50 percent) that his obstructive sleep apnea has been aggravated (any incremental increase in disability) as a result of his service-connected sinusitis? If aggravation is found, is there evidence created prior to the aggravation or between the aggravation and obstructive sleep apnea that shows a baseline of his obstructive sleep apnea prior to aggravation? If so, please identify. The examiner must provide a comprehensive rationale for each opinion provided. The examiner should discuss the Veteran's hearing testimony, statements contained in the record, and the article "Sleep disruption in chronic rhinosinusitis." The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. (Hurley) Merrick 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.