Citation Nr: 21029683 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 16-09 108 DATE: May 14, 2021 REMANDED Entitlement to service connection for a sleep disorder to include obstructive sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty from May 2011 to June 2012, with additional periods of national guard service. 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). The Veteran was scheduled to appear at a Board hearing in June 2019. However, the Veteran did not appear. The hearing request is considered withdrawn. To contemplate the Veteran's appeal, the issue on appeal has been recharacterized as entitlement to a sleep disorder to include obstructive sleep apnea (OSA). Clemons v. Shinseki, 23 Vet. App. 1 (2009). 1. Entitlement to service connection for a sleep disorder to include OSA. The Veteran contends service connection is warranted for his OSA because the condition began in service during his Kuwait deployment from 2011 to 2012. See December 2015 Notice of Disagreement. A diagnosis of OSA is of record. Lay evidence indicates the Veteran began exhibiting OSA symptoms such as loud snoring, restless sleep, and daytime fatigue for the first time during his Kuwait deployment. See March 2016 Buddy/Lay Statement. Additionally, an October 2013 VA treatment record shows a sleep study was indicated based on complaints of fatigue, daytime tiredness, and snoring, but not performed at that time due to the Veteran's time constraints. A March 2015 VA treatment record shows a provisional diagnosis for mild OSA. Subsequent private and VA treatment records have noted the Veteran's sleep disturbances, headaches, fatigue, daytime tiredness, snoring, and anxiety-induced weight gain. In February 2017, a VA physician questioned the OSA diagnosis because it was based on an unattended sleep study using a Watch PAT 200 Diagnostic Unit and recommended re-evaluation. Based on the foregoing, the Board finds that a VA medical examination is warranted pursuant to 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). To the extent the Veteran's OSA was improperly diagnosed, any new diagnosis should be considered as set forth in Grimes v. McDonough, No. 18-1017, 2021 U.S. App. Vet. Claims LEXIS 742 (Vet. App. Apr. 28, 2021). Also, a private neurology examination report from December 2016 suggests service connection may be warranted secondary basis, either because the service-connected post-traumatic stress disorder (PTSD), caused or aggravates the Veteran's OSA, or because obesity was an intermediate link between the service-connected PTSD and the Veteran's OSA. See Medical Treatment Record-Non-Government Facility, received January 13, 2017. VA treatment records show reports of anxiety-induced and PTSD avoidance-behavior-induced weight gain. The Board is required to consider all theories of entitlement to VA benefits that are either raised by the claimant or reasonably raised by the record. DeLisio v. Shinseki, 25 Vet. App. 45, 53 (2011) ("[T]he Secretary generally must investigate the reasonably apparent and potential causes of the Veteran's condition and theories of service connection that are reasonably raised by the record or raised by a sympathetic reading of the claimant's filing."); See also Garner v. Tran, 33 Vet. App. 241 (2021) (holding that the theory of secondary service connection via obesity as an intermediate step is reasonably raised by the record where there is evidence which draws an association between the Veteran's obesity, or weight gain resulting in obesity, and a service-connected condition). To that end, a VA examination and medical nexus opinion are needed. McLendon, supra. Evidence also indicates there may be relevant outstanding private treatment records. A VA treatment record noted in October 2013 that the Veteran, as a student, attended a year of individual therapy through campus for anxiety and poor sleep after returning from Kuwait. A remand is required to obtain those records. 38 C.F.R. § 3.159(c)(1). The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for the educational facility or campus clinic that provided individual therapy to him between June 2012 and October 2013. Make reasonable efforts to obtain all relevant records pertaining to the Veteran's sleep disorder, to include OSA. Associate the records with the claims file. 2. After any outstanding medical records have been obtained and associated with the claims file or reasonable efforts to obtain them have been exhausted, schedule the Veteran for a VA examination for his sleep disorder, to include OSA. The examiner must review the claims file. After review of the Board remand and the claims file and completion of the examination, the clinician should: (a) Identify any diagnosed sleep disorder, to include OSA. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. (b) For any diagnosed disability, the clinician should provide a response to the following: (i) Whether it is least as likely as not (50 percent or greater probability) the diagnosed disability began in, was caused by, or is otherwise etiologically related to active duty service? (ii) Whether it is at least as likely as not (50 percent or greater probability) the diagnosed disability is proximately due to the Veteran's service-connected psychiatric disability, including whether obesity was an intermediate step between the service-connected PTSD and the diagnosed sleep disorder? (iii) Whether it is at least as likely as not (50 percent or greater probability) the diagnosed sleep disorder was aggravated by the Veteran's service-connected PTSD? The term "aggravation" in the above context refers to any incremental increase in disability - any additional impairment of earning capacity -in non-service-connected disabilities resulting from service-connected conditions regardless of its permanence." A rationale should be provided for each opinion offered. In providing a rationale, the clinician must consider the Veteran's competent lay statements. The clinician should also consider any competent lay statements or medical literature submitted by the Veteran in support of his claim. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jones, Catherine J. 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.