Citation Nr: 21027727 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 18-17 721 DATE: May 6, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. REASONS FOR REMAND The Veteran served on active duty March 1993 to March 2013. This matter comes before the Board of Veterans Appeals (Board) on appeal from a rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). A March 2020 Board decision denied the Veteran's claim for service connection for OSA. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). The Court granted a Joint Motion for Remand (JMR) in a December 2020, thereby vacating the Board's March 2020 decision and remanding the matter for compliance with the JMR. Entitlement to service connection for OSA is remanded. The Veteran contends that symptoms associated with his OSA first manifested while in service. Alternatively, the record raises the theory of secondary service connection insofar as OSA may be due to the Veteran's service-connected hypertension, tension headaches, and primary insomnia. See DeLisio v. Shinseki, 25 Vet. App. 45, 54 (2011) (holding VA must investigate secondary service connection when "information obtained during the processing of the claim reasonably indicates that the cause of the condition is a . . . disability that may be associated with service"). To ensure that VA has met its duty to assist, remand is necessary to obtain a new VA examination that adequately addresses both of the aforementioned theories of service connection. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran's service treatment records (STRs) contain document various complaints related to sleeping and daytime sleepiness. For instance, in October 2011, the Veteran was seen for an initial evaluation for OSA and reported symptoms including waking up at night frequently, occasionally waking up gasping, apneaic breathing witnessed by his wife, snoring when lying on his back, and increased daytime sleepiness. The Veteran was assessed with sleep disturbances and referred for a sleep study. A polysomnogram report dated in October 2011 showed a normal sleep study. A November 2011 record reflects that although the Veteran did not have OSA based on results of the sleep study, he did have nonorganic sleep disorders. An August 2012 record shows the Veteran was assessed with nonorganic sleep disorders, sleep disturbances and snoring. During his separation physical dated in December 2012, the Veteran reported symptoms of insomnia, snoring with choking, and waking up frequently during the night. The summary of defects and diagnoses notes "snoring/insomnia" and the Veteran was advised to follow up with VA. In May 2013, a few months following service separation, the Veteran underwent a VA sleep apnea examination. The Veteran denied having sleep apnea but stated he has insomnia for which he was planning to see a mental health practitioner. The examination report contains no diagnosis of OSA based on the normal in-service sleep study that was negative for OSA in October 2011. The record shows that fourteen months following service separation, in May 2014, the Veteran was diagnosed with OSA confirmed by a private polysomnogram. Indications for the sleep study included snoring, witnessed apneas, hypertension and headaches. See Medical Treatment Record-Non-Government Facility (Mary Washington Hospital) (May 2014). A Disability Benefits Questionnaire (DBQ) completed by the Veteran's private physician in August 2014 also reflects a diagnosis of OSA with associated diagnoses of hypertension, insomnia, headache, fatigue and excessive sleepiness. However, the DBQ does not provide an etiological opinion relating the Veteran's OSA to his service. A March 2015 VA sleep apnea examination report reflects the conclusion that the Veteran's OSA was less likely than not caused by his snoring, subjective history of reported apneas and sleep disturbances that occurred during active service. The examiner stated that while the Veteran did have snoring and other sleep disturbances, the in-service sleep study showed he did not have sleep apnea "by definition," and that "medical conditions are dynamic, and with time (Veteran) could develop sleep apnea, but he did not have it at the time of service." The Board finds the VA medical opinion inadequate for adjudicative purposes. First, the opinion relies on the lack of documented in-service diagnosis of OSA and fails to consider whether the Veteran's in-service complaints of snoring, daytime sleepiness, and insomnia were the first manifestations of later diagnosed OSA. See 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992) (service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service). Second, the medical opinion does not discuss the significance of the in-service assessments of nonorganic sleep disorders, sleep disturbances and snoring that followed the normal sleep study. An adequate medical opinion must be "accurate and fully descriptive," 38 C.F.R. § 4.1, and based on an accurate factual premise and consideration of a veteran's prior medical history. Ardison v. Brown, 6 Vet. App. 405, 407 (1994). In addition, the opinion "must support its conclusions with an analysis that the Board can consider and weigh against contrary opinions." Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("most of the probative value of a medical opinion comes from its reasoning"). Third, the opinion does not address the question of whether the Veteran's OSA is proximately caused by or aggravated beyond its natural progression by his service-connected hypertension, tension headaches and primary insomnia. See Allen v. Brown, 7 Vet. App. 439 (1995). As the evidence of record is inadequate to decide the claim on appeal, the Board finds that remand is required to obtain an additional examination in compliance with the JMR and to determine whether the Veteran's OSA is related to his service. In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's OSA. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptoms consistent with his OSA. The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). The clinician should provide an opinion, with supporting rationale, as to the following: Direct Service Connection (a) Whether the Veteran's OSA at least as likely as not (1) had its onset in service, or (2) is otherwise related to an in-service injury, event, or disease during service. Consider whether symptoms described as daytime sleepiness, snoring, witnessed apneic breathing, and waking up frequently during the night (with occasional gasping) started during service represent the onset of OSA in service and indicate whether such symptoms may be due to other causes. Explain. Secondary Service Connection (b) Whether the Veteran's OSA is at least as likely as not (1) proximately due to service-connected hypertension, tension headaches, and/or primary insomnia, or (2) aggravated beyond its natural progression by service-connected hypertension, tension headaches, and/or primary insomnia. Provide a rationale that deals with causation and aggravation as independent concepts. The opinions should, at a minimum, consider and expressly address: (1) the significance of the Veteran's in-service assessments of nonorganic sleep disorders, sleep disturbances and snoring, noted after the October 2011 sleep study did not reveal findings suggestive of OSA; (2) the February 2014 record from Mary Washington Healthcare noting fatigue for the past 5 years with unremarkable work-ups in the past and a referral for a sleep disorders specialist; (3) the May 2014 record from Mary Washington Healthcare noting comorbidities of hypertension and morning headaches; and (4) the August 2014 DBQ, completed by the Veteran's private physician, reflecting a diagnosis of OSA with associated diagnoses of hypertension, insomnia, headache, fatigue and excessive sleepiness. NOTE (1): An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. NOTE (2): An adequate medical opinion may not be predicated solely on the absence of literature supporting causation or aggravation without discussing those facts specific to this Veteran. 2. Ensure that the VA medical opinion obtained include a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include 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. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Krunic, 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.