Citation Nr: 21031080 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 13-29 277 DATE: May 20, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1972 to September 1980. He also served in the District of Columbia Army National Guard from 1992 to 2005, when he was assigned to the Retired Reserve. He was ordered to active duty from November 2001 to April 2002 and from September 2002 to August 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the Department of Veterans Affairs (VA). The Board most recently remanded the case for further development in December 2020. The history of the appeal until that time, including the prior Board remands and decision and proceedings before the United States Court of Appeals for Veterans Claims (Court), are detailed in that decision. The case has since returned to the Board for appellate review. In the 2020 remand, the Board requested an addendum VA medical opinion because the October 2020 VA examiner did not address all of the evidence identified by the Board in its 2019 remand request in providing that opinion. The Board determined that the 2019 remand request was necessary due to the Court's decision as to the adequacy of earlier April 2016 and November 2016 VA medical opinions and failure to ensure compliance with earlier remand instructions. In a March 2021 VA medical opinion, another VA examiner determined that it was less likely than not that the Veteran's obstructive sleep apnea was incurred in or caused by the claimed in-service injury, event, or illness. In so finding, he explained that provided service treatment records were silent for documentation of a suspected or proven diagnosis of obstructive sleep apnea. Although the examiner reached the same determination as the October 2020 examiner on the question of etiology, the opinion as written reflects the same problem that necessitated the earlier remand, inasmuch as the Board noted in the 2019 remand that the examiner must specifically review and discuss certain lay and medical evidence. Based on the foregoing, an additional VA medical opinion is needed. As previously noted, by this remand, the Board makes no determination, express or implied, concerning the credibility of any lay statements on file. The Board acknowledges the December 2017 private medical opinion from Dr. E.P. indicating that it was possible that the Veteran had sleep apnea before the official diagnosis in 2007; however, this opinion is speculative in nature and without a complete rationale. The Veteran may wish to obtain a more complete opinion from Dr. E.P. in support of his claim while the case is in remand status. The case is REMANDED for the following action: Refer the Veteran's claims file to a VA examiner for a clarifying opinion as to the nature and etiology of his obstructive sleep apnea. An additional examination of the Veteran should only be performed if deemed necessary by the individual providing the opinion. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. It is noted that the Veteran had qualifying service from July 1972 to September 1980, from November 2001 to April 2002, and from September 2002 to August 2004. The examiner should state whether it is at least as likely as not that the Veteran's obstructive sleep apnea manifested in or is otherwise related to any period of his qualifying service, including any symptomatology and circumstances therein. In providing this opinion, the examiner should address the following matters (listed in prior requests as the name of the evidence), as well as the additional question as to the general presentation and development of the disorder. It is noted that an opinion in addition to those from October 2020 and March 2021 is necessary to more fully address the contentions below as a result of the requirements set forth in a Court decision. (a) The Veteran's contention that his in-service snoring, breathing disturbances, and dozing off during work hours, as described in written statements from other service members and his spouse beginning in his period of service starting in 2001, were early manifestations of his sleep apnea that was diagnosed several years after service particularly given the reported ongoing nature of those symptoms until he received an actual diagnosis and started receiving treatment after service. See written statements from October 2009 (received in November 2009) and December 2017. (b) The Veteran's contention that the stress from his in-service duties contributed to the development of his obstructive sleep apnea. The Veteran has explained that he did not seek a sleep study for the symptoms in service because he did not believe he had sleep apnea at that time; he thought the symptoms were a natural result of his age and the physical and physiological stresses of the duties he was performing during his active deployment periods between 2001 to 2004. He has recalled sleeping a maximum of six hours a night, occasionally waking up after four hours, and that military police duty often required working abnormal rotating shift work schedules. In addition, he has recalled that his abnormal sleep symptoms persisted after that time, and he realized after service that the symptoms were not normal and sought VA treatment. See written statements from October 2009 (received in November 2009), January 2010 (notice of disagreement), and May 2016 (also detailing Veteran's contentions). The VA treatment records show that the Veteran sought treatment for his sleep symptoms in December 2006. A May 2007 VA treatment record for a consultation shows that he reported having three years of sleep problems, four nights a week, snoring, and being sleepy in the day. His spouse's December 2017 written statement details her observations as to his excessive snoring and breathing difficulties after he returned home from his duty assignment in 2004, which she noted were not present before his 2001 duty assignment. (c) The medical significance, if any, of the December 2017 private medical opinion from Dr. E.P. indicating that it was possible that the Veteran had sleep apnea before the official diagnosis in 2007, noting the onset of sleep symptoms around 2001. (d) In providing this opinion, the examiner should discuss medically known or theoretical causes of the currently diagnosed disorder and describe how such a disorder generally presents or develops in most cases, in determining the likelihood that the current disorder is related to in-service events as opposed to some other cause. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Postek, 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.