Citation Nr: 21040228
Decision Date: 07/02/21	Archive Date: 07/02/21

DOCKET NO. 14-22 519
DATE: July 2, 2021

REMANDED

A claim for service connection for an obstructive sleep apnea (OSA) is remanded.

REASONS FOR REMAND

The Veteran honorably served on active duty from June 1978 to June 1998. In a January 2013 rating decision, the Regional Office (RO) denied his claim for service connection for an obstructive sleep apnea (OSA). The Veteran appealed. In July 2017, the Veteran testified at a Board's hearing, a transcript of which is of record. In February 2018, the Board remanded the claim for further development. In August 2018, the RO issued a supplemental statement of the case affirming its prior decision and then returned the appeal to the Board. In December 2019, the Board denied the claim. The Veteran then appealed to the United States Court for Veterans' Appeals (Court). In February 2021, the Court granted a Joint Motion for Remand (JMR), vacating and remanding the claim for further development.

Per JMR, the parties agreed that the VA's duty assist the Veteran in obtaining his private treatment records from Dr. M.W.F., MD, has not been satisfied and thus the Veteran must be assisted in obtaining those records. As such, the Board finds that remand to the RO is warranted.

The parties further agreed that the Board should address the adequacy of the May 2018 VA examination. Upon reviewing the examination report in light of the JMR and the Veteran's contentions advanced in his February 2021 correspondence, the Board finds that obtaining a supplemental medical opinion is appropriate. 

Accordingly, the matters are REMANDED for the following action:

1. Obtain the Veteran's VA treatment records for the period from December 2019 to the present; assist the Veteran in obtaining his private treatment records from Dr. M.W.F., MD, for the period from 2005 to the present, and any other private medical treatment records he may reasonably identify; and ensure the full compliance with all regulatory requirements, to include providing requisite notices and forms.

2. Obtain a supplemental medical opinion as to the etiology of the Veteran's obstructive sleep apnea (OSA). If the Board's questions cannot be answered without an in-person examination, one should be provided. The examiner is asked to answer the following questions:

a)	Is it at least as likely as not (50 percent or greater probability) that the Veteran's OSA either began in or otherwise was caused by his military service? Why or why not?

The examiner must review the entire claims file. 

The examiner must expressly discuss the Veteran's and other lay statements of record as to the onset and continuity of symptomatology, to include snoring loudly, pausing breathing during sleep, waking up frequently, and complaining of poor sleep quality. In considering the lay statements, the examiner must explain whether or not the reported symptomatology is consistent with the OSA symptoms and explain why.  

b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's OSA was caused by his service-connected asthma? Why or why not?

c) Is it at least as likely as not (50 percent or greater probability) that the Veteran's OSA was aggravated (meaning made worse, NOT made permanently worse beyond the natural progression of the disease) by his service-connected asthma? Why or why not?

If aggravation is found, a baseline severity level prior to the aggravation of OSA should be established. If this cannot be established at all or without resorting to speculation, the examiner should explain why.

 

MATTHEW W. BLACKWELDER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Alex Bardin, 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.