Citation Nr: 21031907 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 15-02 238 DATE: May 24, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. REASONS FOR REMAND The Veteran had active service from June 1986 to June 1990. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at an October 2018 videoconference hearing, and a transcript of the hearing has been associated with the claims file. This matter was previously denied by the Board in April 2019, after which the Veteran appealed the matter to the United States Court of Appeals for Veterans Claims (Court). In October 2020, the Court issued a Memorandum Decision, which reversed the Board's finding that the duty to assist had been met and set aside the April 2019 Board decision and remanded the matter to the Board. The matter has now returned to the Board for adjudication. In the interest of judicial economy, the Board will focus its current analysis on the areas of deficiency identified within the October 2020 Memorandum Decision, and the Board hereby incorporates all other facts and analysis of the April 2019 vacated Board decision by reference. See generally Carter v. Shinseki, 26 Vet. App. 534, 542-43 (2014), vacated on other grounds sub nom Carter v. McDonald, 794 F.3d 1342 (Fed. Cir. 2015). Entitlement to service connection for obstructive sleep apnea is remanded. In the October 2020 Memorandum Decision, the Court noted that the Board's April 2019 decision rejected various lay statements, in part, because it found them "inconsistent with service treatment records which document the Veteran's regular denials of frequent trouble sleeping and do not document any in-service complaints of sleep apnea or related symptoms." However, the Court stated that much of the lay evidence, which included buddy statements, addressed symptoms of which the Veteran was unaware, such as snoring or momentary nighttime waking, and it is not clear why the Veteran would have been expected to raise his snoring in response to a question [within a Report of Medical History] about trouble sleeping. As the Court noted, the absence of evidence is not negative evidence, and the Board generally must "first establish a proper foundation for drawing inferences against a claimant from an absence of documentation;" however, the Board did not do so in its April 2019 denial. The Court also stated that the Board did not err in finding that the lay witnesses lacked the medical expertise to state that the Veteran's in-service snoring and other problems were symptoms of sleep apnea, but noted that the record does not include a medical determination addressing the relationship between sleep apnea and the in-service snoring and other problems observed by lay witnesses. The Court noted that the Board obtained an addendum opinion in January 2018, after the Veteran's submission of lay evidence, but the VA examiner did not address the lay evidence and instead found no evidence of sleep apnea during service in part because of the lack of in-service symptoms. Given that the Board found probative evidence of snoring during service and determined that a link between snoring and sleep apnea is a matter requiring medical expertise, the Court stated that it seems that the Board needed a medical opinion to inform its decision on whether the in-service snoring and other problems were related to sleep apnea. As such, the Court found that remand was warranted for the Board to sufficiently address the lay evidence and the duty to assist. In particular, the Court held that the Board should either obtain a medical examination addressing the relationship between sleep apnea and the lay evidence of in-service snoring and other problems or explain why one is not needed. Based upon a review of the record, including the October 2020 Memorandum Decision discussed above, the Board finds that remand of this matter is warranted in order to obtain an adequate medical opinion regarding whether there is a relationship between the lay evidence of in-service snoring and other problems and the Veteran's sleep apnea. The matter is REMANDED for the following action: Return the claims file to the January 2018 VA examiner for an addendum medical opinion regarding the nature and etiology of the Veteran's sleep apnea. If the January 2018 VA examiner is unavailable, another appropriately qualified examiner be substituted. If the examiner determines that an in-person examination should be performed, an examination should be scheduled. The claims file and a copy of the below facts must be made available to the reviewing VA examiner. To assist in a review of the claims file, the examiner is informed of the following facts with citations in the record, where applicable: The Veteran had active service from June 1986 to June 1990. A June 1985 Report of Medical Examination for enlistment purposes (approximately one year prior to service entrance) documents normal clinical evaluations of the nose and mouth and throat. The Veteran's height was 68 inches and weight was 118 pounds. See VBMS entry with document type, "STR - Medical," receipt date 06/04/2013, with "#2" in the subject field, at pages 20-21 (items 19, 21 & 51, 52). A September 1986 Report of Medical Examination documents normal clinical evaluations of the nose and mouth and throat. The Veteran's height was 68.3 inches and weight was 125 pounds. See VBMS entry with document type, "STR - Medical," receipt date 06/04/2013, with "#2" in the subject field, at pages 18-19 (items 19, 21 & 51, 52). The April 1990 Report of Medical Examination at separation documents normal clinical evaluations of the nose and mouth and throat. The Veteran's height was 70 inches and weight was 140 pounds. See VBMS entry with document type, "STR - Medical," receipt date 06/04/2013, with "#2" in the subject field, at pages 16-17 (items 19, 21 & 51, 52). In the April 1990 Report of Medical History, the Veteran denied a history of frequent trouble sleeping. See VBMS entry with document type, "STR - Medical," receipt date 06/04/2013, with "#2" in the subject field, at page 28 (item 11, third column). While in the reserves, Reports of Medical Examination performed in June 1990, October 1991, October 1996, and November 2001 each document normal clinical evaluations of the nose and mouth and throat, and the Veteran denying a history of frequent trouble sleeping within concurrent Reports of Medical History. The Veteran's weight during this time ranged from 130 to 145 pounds. See VBMS entry with document type, "STR - Medical," receipt date 06/04/2013, at pages 12, 14, 8, 10, 6, 30, 3, and 34, respectively. An October 2009 treatment notation documents the Veteran's denial of shortness of breath, sore throat, headache, runny nose, cough, and fatigue. See VBMS entry with document type, "STR - Medical," receipt date 06/04/2013, with "#1" in the subject field, at page 46. A December 2010 private treatment record shows that the Veteran was seen for a complaint of low back pain. The Veteran reported a past medical history of taking Lipitor for hyperlipidemia and, "No other issues." The examiner wrote, "Twenty live point review of systems reveals no other concern or problem." The examiner noted that the Veteran was a "somewhat elevated BMI male who appears to be slightly deconditioned reporting to be 5 feet 10 inches tall and 165 pounds." See VBMS entry with document type, "Medical Treatment Record Non-Government Facility," receipt date 02/29/2012, at page 9. A January 2012 private treatment record shows the Veteran reported having some problems with fatigue, and there was discussion about studying his testosterone levels. See VBMS entry with document type, "Medical Treatment Record - Non-Government Facility," receipt date 05/15/2013 at page 12. In February 2012, when seen with complaints of back pain, the examiner wrote the Veteran was "[h]aving no trouble sleeping." See VBMS entry with document type, "Medical Treatment Record - Non-Government Facility," receipt date 02/29/2012 at page 15. In February 2013, the Veteran was seen with complaints of snoring loudly, daily, for many years with witnessed apneas and episodes of waking up choking or gasping for air. The Veteran reported that upon waking in the morning he was not refreshed. The examiner documented his Epworth sleepiness scale score was 10/24 (noting <10 is normal). The examiner also noted the Veteran had not nodded off while driving, at work, or in conversation. The examiner diagnosed probable obstructive sleep apnea with weight gain, snoring, unrefreshing sleep, daytime sleepiness, and airway crowding." A sleep study was ordered. See VBMS entry with document type, "Medical Treatment Record - Non-Government Facility," receipt date 03/15/2013, at pages 9-10. A February 2013 sleep study report shows that the Veteran was reported as being 70 inches tall and 170 pounds with a BMI of 24.4. The impression was obstructive sleep apnea/hypopnea, previously documented as mild on 02/15/2013 with an overall apnea/hypopnea index of 8.4 events per hour, and 9.7 per hour during supine sleep. The minimum oxygen saturation was 8%. See VBMS entry with document type, "Medical Treatment Record - Non-Government Facility," receipt date 03/15/2013, at page 5. In an October 2017 statement from the Veteran's mother, she reported that the Veteran did not experience any sleep problems prior to active service but that after that time, she noted that she had witnessed the Veteran's snoring and apneas. See VBMS entry with document type, "Email Correspondence," receipt date 11/03/2017. In a November 2017 statement, the Veteran's mother reported that when the Veteran visited home during military leave, he would often doze off when they were all watching television or reading, and his brother, with whom he shared a room at night, mentioned observing periods where the Veteran would snore and stop breathing throughout the night. See VBMS entry with document type, "Buddy/Lay Statement," receipt date 01/11/2018. An October 2017 statement from the Veteran's wife reported that he had always snored from the time they first met and that she had observed several occasions where his breathing stopped. She noted that she and the Veteran were married in April 1995. See VBMS entry with document type, "Buddy/Lay Statement," receipt date 11/03/2017. In November 2017, the Veteran reported to a VA decision review officer (DRO) that his sleep apnea started after his deployment to Korea, when other service members told him that he snored. See VBMS entry with document type, "Hearing Related," receipt date 11/02/2017. In a January 2018 opinion, a VA examiner concluded that it was less likely than not that the Veteran's sleep apnea had its onset in service. The examiner explained that sleep apnea was diagnosed remotely in 2013 after his period of active duty from 1986 to 1990. The examiner noted that a February 2013 sleep study diagnosed mild obstructive sleep apnea. The examiner added, "There is no evidence of sleep apnea being present during the [V]eteran's time in military service, and the fact that he has been diagnosed remotely after his time in military service makes it less likely than not that sleep apnea was incurred in or caused by the [V]eteran's time in military service." See VBMS entry with document type, "C&P Exam," receipt date 01/22/2018. At the October 2018 Board video conference hearing, the Veteran testified that his sleep apnea and breathing problems began during active service and did not exist prior to active service from June 1986 to June 1990. See VBMS entry with document type, "Hearing Transcript," receipt date 10/31/2018, at page 5. The Court's October 2020 Memorandum Decision found that the record does not include a medical determination addressing the relationship between sleep apnea and the in-service snoring and other problems observed by lay witnesses (the Veteran's mother and wife) and that a January 2018 VA examiner's opinion did not address the lay evidence, and, instead, found no evidence of sleep apnea during service in part because of the lack of in-service symptoms. See VBMS entry with document type, "CAVC Decision," receipt date 10/26/2020. Thus, the Board is seeking an addendum medical opinion for the examiner to address the 2017 lay statements regarding witnessed snoring and other breathing problems. The examiner's review of the record is NOT restricted to the evidence listed above. This list is provided in an effort to assist the examiner in locating potentially relevant evidence. Based upon a review of the record, including the evidence discussed above, the examiner is requested to opine whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's sleep apnea began during active service from June 1986 to June 1990? In rendering the above opinion, the examiner is asked to specifically address the lay evidence of record concerning in-service symptoms of snoring and other breathing problems observed by lay witnesses. A full rationale must be provided for all medical opinions given. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. The examiner shall then explain whether the inability to provide a more definitive opinion is the result of a need for more information and indicate what additional evidence is necessary, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Chad Johnson, 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.