Citation Nr: 21041459 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 16-61 696 DATE: July 9, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from February 1973 to March 1995. This matter originally came before the Board of Veterans' Appeals (Board) from an August 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran expressed disagreement with this determination in a timely manner, and the present appeal ensued. The Veteran's appealed issue, among others, was previously before the Board in December 2018, when it was determined that remand was necessary to ensure that VA fulfilled its duty to assist the Veteran in substantiating his appeal. The Board's prior remand directives and the subsequent actions of the AOJ will be discussed below. The Veteran's appeal has been returned to the Board for further appellate consideration. The Board notes that during the pendency of the appeal, a November 2020 rating decision granted service connection for a left eye scar. As such is a full grant of the benefit sought, the issue is no longer before the Board. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). Entitlement to service connection for sleep apnea is remanded. Consequent to the Board's December 2018 remand, the Veteran was provided a VA examination to determine the nature and etiology of his claimed sleep apnea in October 2019. The examiner stated that sleep apnea is due to uvulopalatal dysfunction and would not be related to the Veteran's face and nasal trauma suffered during service. It also stated that sleep apnea was not related to Southwest Asia environmental exposure because no common medical knowledge supported such a connection. See the October 2019 examination report. The Board finds the examiner's statements are inadequate because such did not consider all the relevant evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Specifically, the examiner did not consider the Veteran's report of sleep disturbances during and since his active duty, including gasping for air, which has resulted in low amounts of sleep and feeling tired all the time. The Board also finds the examination inadequate because the opinions did not include an adequate rationale. See Nieves-Rodriguez, 22 Vet. App. at 295. Specifically, the examiner did not explain why the serious trauma to the Veteran's face and head during service, which included his jaw, could not have caused or had an effect on the uvulopalatal dysfunction. Additionally, evidence suggests a potential relationship between the Veteran's sleep apnea and his service-connected disabilities. See VA treatment records dated in October 2019, December 2017, and November 2016. Currently, the record is devoid of any medical opinions addressing this theory of entitlement. See Wallin v. West, 11 Vet. App. 509, 512 (1998). For the reasons discussed above, the Board concludes that remand is necessary to ensure that VA fulfills its duty to assist the Veteran in substantiating his appeal The matter is REMANDED for the following actions: 1. Provide the Veteran with an opportunity to identify any relevant outstanding private and/or VA treatment records. After obtaining any necessary authorizations from the Veteran, make all reasonable attempts to obtain the outstanding records in accordance with 38 C.F.R. § 3.159. 2. Update VA and private treatment records. VA treatment records appear current up to March 2020. 3. Schedule an appropriate VA examination for the Veteran's sleep apnea. The need for an in-person examination of the Veteran is left to the discretion of the examiner. Following a review of the claims file and a copy of this Remand, the reviewing examiner is requested to furnish an opinion with respect to the following: (A) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's sleep apnea had its onset in or is otherwise related to the Veteran's service, to include but is not limited to environmental exposure in Southwest Asia and trauma to the head and face? (B) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's sleep apnea is/was caused by any or all of the Veteran's service-connected disabilities (including but not limited to any medications taken for the service-connected disabilities)? (C) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's sleep apnea is/was aggravated beyond its natural progression by any or all of the Veteran's service-connected disabilities (including but not limited to any medications taken for the service-connected disabilities)? State whether there is/was a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described in terms of diagnosis, severity, and duration. The permanence of the aggravation is not at issue. (D) Is it at least as likely as not (a 50 percent or greater probability) that any or all of the Veteran's service-connected disabilities (including but not limited to any medications taken for the service-connected disabilities) caused or aggravated the Veteran's obesity/being overweight including whether there is/was any incremental increase in disability or aggravation as a result of service? State whether there is/was a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described in terms of diagnosis, severity, and duration. The permanence of the aggravation is not at issue. (E) If yes to question (D), is it at least as likely as not (a 50 percent or greater probability) that the obesity/being overweight caused or aggravated the Veteran's sleep apnea including whether there is/was any incremental increase in disability or aggravation as a result of service? State whether there is/was a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described in terms of diagnosis, severity, and duration. The permanence of the aggravation is not at issue. If yes, which ones? In addition to the other relevant evidence of record, the examiner is asked to consider and address as appropriate the following evidence with a caution that this list is not a substitute for a review of the record: (1) A list of the Veteran's service-connected disabilities. See November 2020 Rating Decision Codesheet. (2) A medical record from October 2019 showing the Veteran's report that he had a broken jaw and nose during service and has had a history of loud snoring ever since. He was eventually diagnosed with sleep apnea in 2014. See October 2019 C&P Exam. (3) Medical records showing a body mass index of 26.5. Medical records from 2018 showed sleep problems related to the Veteran's service-connected psychiatric disabilities. Specifically, the Veteran fought in his sleep, always kicked in his sleep, had restless sleep, and had nightmares. The Veteran also had sleep problems related to the Veteran's service-connected fibromyalgia. Medical records from 2019 showed that the Veteran had trouble with his sleep mask and that he felt claustrophobic when wearing it at night. See October 2019 CAPRI. (4) Medical records from 2005 showing an assessment of needing regular exercise and weight control. Medical records from 2015 showed the inability to sleep due to the Veteran's service-connected psychiatric disabilities. Medical records from 2017 showed a body mass index of 26.6 and that the Veteran was educated about the health risks of obesity. See December 2017 CAPRI. (5) Service records from 1974 showing a fractured mandible and related teeth issues. The Veteran had been struck in the face and had lost consciousness for about 15 minutes. He was taken by ambulance to the hospital. Further information is provided. See December 2017 Medical Treatment Record. (6) Service records showing complaints of intermittent difficulty breathing, difficulty breathing through the nose, a right nasal obstruction for two years, a deformity to the tip of the nose, head trauma from a fight, and jaw pain; examinations showing marked caudal septal deflection in the right nostril with retraction of the columella, a post-traumatic right deviated septum, right mandibular edema and possibly crepitus, and right supra orbital edema; a scheduled septoplasty; trauma to the head and face; a diagnosis of an impacted mandibular right second bicuspid; a diagnosis of a traumatic nasal deformity; teeth problems; and no evidence of sleep apnea upon entrance into service. See November 2017 STR Medical. (7) Service records showing service in Saudi Arabia. See November 2017 Military Personnel Record. (8) Medical records from 2014 showing that the Veteran was screened for sleep apnea given the report of forgetfulness, decreased daytime performance, fatigue, and snoring. A sleep study found periodic limb movement, snoring, and obstructive sleep apnea. Medical records from 2015 showed sleep problems related to the Veteran's service-connected psychiatric disabilities. See November 2016 CAPRI. (9) The Veteran's report that he had had sleep disturbances ever since his time in service. He had had excessive snoring and gasping for air, which left him with little sleep, and caused him to feel tired all the time. See November 2015 NOD. (10) The Veteran's report that his sleep apnea was due to environmental exposure in Southwest Asia. See May 2014 Fully Developed Claim. (11) All other relevant lay and medical evidence. A complete rationale for all opinions offered should be provided. Address the Veteran's documented history and assertions, including but not limited to the Veteran's report of continuity of symptomatology since service. The examiner should specifically address the affects that the head and face injury during service and Southwest Asia environmental exposure could have on uvulopalatal dysfunction. All necessary tests and studies should be conducted. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner should provide an explanation stating why. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is due to the limits of the medical community's knowledge or due to the limits of the examiner's medical knowledge. The Veteran is competent to attest to factual matters of which the Veteran has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. 4. Thereafter, the AOJ must readjudicate the Veteran's appealed issue in light of the totality of evidence of record. If any benefit sought is not granted to the fullest extent, the AOJ must provide the Veteran and his representative with a copy of the readjudication and afford them an appropriate period to respond. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Dougan, 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.