Citation Nr: 21041175 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 15-25 917 DATE: July 8, 2021 REMANDED Entitlement to service connection for a sleep disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from January 2004 to January 2006. He served honorably in the U.S. Navy, including service in Kuwait during the Persian Gulf War. The Board thanks the Veteran for his service to our country. The Veteran testified before another Veterans Law Judge (VLJ) at a Board hearing in April 2018. A transcript of the hearing is of record. In April 2020, the Veteran was informed that the VLJ before whom his hearing was held was no longer with the Board and offered the opportunity to request a new hearing; in May 2020 he responded that he did not wish to appear at another Board hearing. Accordingly, the Board proceeded with adjudication. The issue of service connection for a sleep disorder was previously before the Board in September 2018, when the Board denied the claim. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). In a December 2019 Order, granting a November 2019 Joint Motion for Remand (Joint Motion), the Court vacated and remanded the September 2018 Board decision consistent with the terms of the Joint Motion. The Board remanded this case in July 2020 for additional development. The case has now returned to the Board for further appellate review. Entitlement to service connection for a sleep disorder is remanded. A remand is warranted to ensure substantial compliance with the July 2020 Board decision. The Board errs when it fails to ensure substantial compliance with a Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the July 2020 Board remand, the Board directed the Agency of Original Jurisdiction to obtain an addendum opinion as to whether the each identified sleep disorder is without a conclusive pathophysiology or etiology. However, in the October 2020 opinion, the examiner did not address this issue or provide any explanation as to the pathophysiology and etiology of the identified sleep disorder. In the opinion, the examiner concluded that the Veteran's disorder is less likely than not incurred in or otherwise related to service as advancing age, male gender, obesity, and craniofacial or upper airway soft tissue abnormalities are risk factors for sleep apnea. The examiner then concluded, without providing explanation, that these risk factors are most likely the cause of his sleep apnea. Further, the examiner did not address the Veteran's April 2018 testimony of loud snoring in service or December 2005 post-deployment health assessment in which he reported chronic cough, headaches, and difficulty breathing while deployed and contemporaneously feeling tired after sleeping. Nor did the examiner address the studies submitted by the Veteran indicating correlations between various environmental hazard exposures such as ozone and changes in pulmonary function, structural changes in the respiratory tract, and pulmonary disorders including obstructive airway disorders. Further, in May 2021 the Veteran submitted a letter from a VA provider noting that the pathophysiology of constructive bronchiolitis is similar to that of asthma and the incidence of obstructive sleep apnea is significantly greater in asthmatics and likely due to the use of inhaled corticosteroids. He also submitted a study which noted increased apneic episodes in babies during bronchiolitis. As there is an indication that the sleep apnea may be related to service-connected bronchiolitis, an addendum opinion is warranted. Finally, the Board notes the Veteran's representative's contention that the October 2020 examiner is a general medicine physician without any competence or expertise in the relevant specialty of pulmonology and/or sleep medicine. As the representative raised the issue of the examiner's competence, the examiner's curriculum vitae should be requested and provided to the Veteran and his representative to provide them the opportunity to make a more informed argument as to why the examiner would not be qualified to opine as to the nature and etiology of the sleep disorder. The matters are REMANDED for the following action: 1. Please secure for the record copies of complete updated clinical records (any not already of record) of all VA and non-VA treatment the Veteran has received for the disability on appeal. Please ask the Veteran to provide the releases necessary for VA to secure private treatment records. 2. Please obtain a copy of the curriculum vitae (CV) or resume of the VA examiner who completed the October 2020 sleep apnea examination and/or provide information addressing the competence or expertise in the relevant specialty of pulmonology and/or sleep medicine. Associate information provided with the record and provide the Veteran and his representative a copy thereof. If the requested CV is not obtainable, the Veteran and his representative should be notified and the reasons for such should be documented in the record. 3. After affording the Veteran and his representative a reasonable period of time to respond to the VA examiner's CV, evaluate the examiner's qualifications and consider the Veteran's contention that the examiner was not competent in the relevant specialty of pulmonology and/or sleep medicine. If the examiner is deemed to be competent and the claim is not granted, include in the supplemental statement of the case (SSOC) factual findings regarding the examiner's qualifications and reasons and bases for concluding that the examiner was competent in the relevant specialty of pulmonology and/or sleep medicine. If the examiner is determined to not be competent and the claim is not granted, in the SSOC, discount the findings of the October 2020 examination report. 4. After the action requested in paragraphs 1 and 2 are complete and a determination as to the October 2020 examiner's competence is made, please refer the claim to an appropriate clinician for an addendum opinion as to the nature and etiology of the sleep disorder. The Veteran's claims-file must be made available to and reviewed by the clinician. The clinician is requested to identify by diagnosis all sleep disorders current during the period on appeal and, for each identified disorder, to respond to the following: (a.) Is the Veteran's sleep disorder at least as likely as not (a 50 percent or greater probability) related to service, to include as due to environmental hazard exposures, or have its onset in service? (b.) Is the Veteran's sleep disorder at least as likely as not (a 50 percent or greater probability) caused by service connected constrictive bronchiolitis? (c.) Is the Veteran's sleep disorder at least as likely as not (a 50 percent or greater probability) aggravated by service connected constrictive bronchiolitis? (d.) Please state whether the sleep disorder is without a conclusive pathology or etiology. If the sleep disorder has a conclusive pathology and etiology, please provide an adequate explanation. ONLY IF the October 2020 examiner is determined to not be competent in the relevant specialty of pulmonology and/or sleep medicine: (e.) Please state whether the Veteran has sleep-related symptoms which have no diagnosis. (f.) Please state whether the sleep-related symptoms are the result of an undiagnosed illness or medically unexplained chronic multisymptom illness. With respect to question (a.), the clinician is requested to consider and address as appropriate the following: The Veteran's December 2005 post-deployment health assessment in which he reported chronic cough, headaches, and difficulty breathing while deployed and contemporaneously feeling tired after sleeping; frequent exposure to smoke from oil fire, vehicle or truck exhaust fumes, JP8 or other fuels, solvents, paints, industrial pollution, sand and dust, and sulphur releases; and being in the Port of Shuaiba, Kuwait. See file labeled "Medical Treatment Record Government Facility" received September 3, 2013; please note a CAPRI record received March 12, 2015 contains a May 8, 2009 post-deployment health re assessment. The Veteran's testimony that in Kuwait he was exhausted and snoring "like a banshee," that he was told by a shipmate that he snore like a bear, and that his snoring got worse when he was overseas. He also testified that they were in the Port of Shuaiba in Kuwait and that his tent was about 3 to 4 blocks from the burn pits, exposing him whenever the wind changed. See April 19, 2018 Hearing Transcript. Studies indicating a correlation between various environmental hazard exposures and changes in pulmonary function, structural changes in the respiratory tract (noted with respect to exposure to ozone for months and years), and pulmonary disorders including obstructive airway disorders. This also contains environmental/occupational health workplace exposure data (see pgs. 143-44) for Shuaiba Port, Kuwait for the period during which the Veteran was deployed. See file labeled "Correspondence," received April 19, 2018 (160 pages). With respect to questions (b.) and (c.), the clinician is requested to consider and address as appropriate the following: A May 3, 2021 letter from a VA provider stating that corticosteroids can weaken upper airway dilator muscles and increase collapsibility resulting in sleep apnea and that the incidence of obstructive sleep apnea is significantly greater in asthmatics and likely due to the use of inhaled corticosteroids. See file labeled "Identification Materials" received on May 3, 2021. A 1982 study, "Sleep apnea in acute bronchiolitis" noting increased apneic episodes in babies during bronchiolitis. It also stated that it seems that bronchiolitis increases physiological 'weak-spots' in breathing but is not a major cause of transition from a physiological to pathological apnea. See one file labeled "Correspondence" and five files labeled "Identification Materials" received on May 2, 2021. The Veteran's medication history including a December 13, 2007 VA note noting no active outpatient medications found; July and September 2011 VA notes noting albuterol; and, after the October 2011 sleep apnea diagnosis, an April 2012 VA note identifying flunisolide as a pending medication, a May 2012 note with a plan to start mometasone, and a November 2012 note with a plan to start Symbicort. If the basis of a negative opinion is the absence of documented injury or symptomatology (such as snoring or fatigue after sleeping) in the Veteran's service records, the clinician must explain whether (1) any injuries or symptomatology leading to the Veteran's current disorder would have been noted in the Veteran's service records; and (2) the Veteran would have sought treatment for such injuries or symptomatology. The VA examiner is asked to provide a copy of his/her curriculum vitae as part of the VA examination report. The clinician must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. The clinician should take into consideration that the Veteran is competent to report in service and post-service symptom experiences; other witnesses are competent to report observable symptoms. If the clinician cannot provide an opinion without resorting to speculation, the clinician should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Vashaw, 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.