Citation Nr: 21031853 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-00 966 DATE: May 24, 2021 REMANDED The claim of entitlement to service connection for sleep apnea, to include as due to herbicide exposure or as secondarily related to service-connected diabetes type II (DMII) or posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran had honorable active duty service in the United States Army from July 1969 to January 1972. He received the Vietnam Service Medal with three Bronze Service Stars, among other commendations. The Veteran had additional service in the United States Air Force Reserves with active duty periods from October 2001 to September 2002 and from February 2003 to February 2004. This matter comes before the Board of Veterans' Appeals (Board) from a July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in November 2019. In October 2020, VA notified the Veteran that a complete transcript of that hearing could not be created due to audio malfunctions and notified the Veteran of his options to schedule another hearing. In February 2021, VA received a response from that Veteran that he did not wish to appear at another hearing and asking that his claim be decided on the evidence of record. Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. The claim of entitlement to service connection for sleep apnea, to include as due to herbicide exposure or as secondarily related to service-connected DMII or PTSD, is remanded. The Veteran contends that his sleep apnea is related to his active service, to include as due to exposure to Agent Orange. Alternatively, he contends that his sleep apnea is secondarily related to his service connected DMII or PTSD. The existence of a current disability is not in question as the Veteran was diagnosed with obstructive sleep apnea (OSA) in approximately June 2013. However, the medical opinion evidence of record is in adequate as the existing VA examination opinions did not address the Veteran's assertion that his condition is related to herbicide exposure and did not address the claimed connection between the Veteran's PTSD and his sleep apnea. For example, mental health treatment records indicate that while the Veteran's PTSD did cause him some sleep disturbance symptoms, he was also recommended for a sleep study to assess potential sleep apnea. This was not addressed by the examination or addendum opinions of 2015. Additionally, the medical opinion evidence of record failed to address lay statements of record made by the Veteran that, as of November 2013, he reported "experiencing sleep difficulties for over 40 years." As such, remand is warranted for an updated examination or addendum opinion. The matters are REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim. If any requested records are unavailable, that should clearly be documented in the record and the Veteran so notified in accordance with 38 C.F.R. § 3.159 (e). All steps taken to attempt to obtain such records should be documented. 2. Obtain an addendum opinion regarding the nature and etiology of the Veteran's obstructive sleep apnea, to include assessment of any relationship between his sleep apnea, herbicide exposure, DMII, and PTSD. If a new VA examination is deemed necessary, one should be provided. 3. The opining clinician shall be asked to address the following: (a.) Is it at least as likely as not that the Veteran's sleep apnea manifested during, or as a result of, active military service, to include as due to herbicide exposure? The examiner is reminded that it is not adequate to merely state that sleep apnea is not "presumptively" related to herbicide exposurea direct opinion should be provided considering the medical evidence included in the Veteran's case. Additionally, the examiner should not rely solely on the lack of in-service medical records in considering whether the Veteran's current sleep apnea began during service or is otherwise related to service. (b.) Next, opine as to whether it is at least as likely as not that the Veteran's currently diagnosed sleep apnea was either caused by or aggravated by his service-connected PTSD? In providing this opinion, please consider the Veteran's mental health treatment records, including lay statements made to mental health providers in November 2013 that his sleep difficulties had existed for "40 years" and the medical research articles submitted by the Veteran suggesting a link between PTSD and sleep apnea. (c.) Finally, the examiner should consider the May 2015 VA examination opinion that the Veteran's sleep apnea is less likely than not related to DMII. Provide a statement as to whether there is any cause to revise or change that opinion based on current medical understanding of the conditions of DMII and sleep apnea. In other words, is there any medical evidence to suggest a causal relationship between DMII and obstructive sleep apnea, as in the Veteran's case? Further, provide an opinion as to whether it is at least as likely as not that the Veterans sleep apnea is secondarily related to (aggravated by) his DMII. 4. After completion of the above, the Agency of Original Jurisdiction should readjudicate the issue on appeal. (Continued on the following page.) If the appeal remains denied, the AOJ should issue an appropriate Supplemental Statement of the Case, and afford the Veteran and his representative an opportunity to respond before the case is returned to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Hart, Associate 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.