Citation Nr: 21041934 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 17-41 346 DATE: July 10, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. REASONS FOR REMAND The served on active duty from July 2001 through November 2009. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision in response to a March 2016 claim. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in May 2021. 1. Service connection for obstructive sleep apnea The Veteran contends that he has sleep apnea that began during service or as secondary to his service-connected mental health disability. Chronic sleep impairment is contemplated under his current rating for his psychiatric disorder. See 38 C.F.R. § 4.125, Diagnostic Code 9400. However, the Veteran also has a separate diagnosis of obstructive sleep apnea based on a March 2016 sleep study. The Veteran also submitted private sleep center records dated through July 2020. VA treatment records from October 2012 through August 2017 include notations of sleep difficulties related to his mental health disorder as well as sleep apnea since 2016. Updated VA treatment records should be obtained to assist in determining whether there was aggravation of sleep apnea by the mental health disorder. The diagnosis of sleep apnea was made after a September 2015 VA examination in connection with prior claims for other disorders, which were denied, found no diagnosis of sleep apnea. This was based on a December 2007 study during service, which diagnosed primary snoring but not sleep apnea. Accordingly, that VA examiner gave no nexus opinion as to sleep apnea, distinguished from primary snoring. A medical opinion is needed to address the etiology of sleep apnea. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records for the Veteran since August 2017. 2. Thereafter, obtain a medical opinion from an appropriate clinician as to the etiology of the Veteran's current obstructive sleep apnea. (a.) The examiner should opine whether the Veteran's obstructive sleep apnea diagnosed by a March 2016 sleep study is at least as likely as not directly related to his report of symptoms since January 2007 and the diagnosis of primary snoring by a December 2007 sleep study in service. The examiner should consider the Veteran's reports of ongoing symptoms since 2007 along with other relevant evidence, including but not limited to the following: VBMS STR received 5/12/15 (page 75: June 2007 record reporting problems sleeping started in January 2007, wife tells him he snores sometimes; page 67: August 2007 record reports excessive daytime sleepiness, "heroic snoring," witnessed apneas, gasping and snorting during sleep arousals as witnessed by bed partner, referred for evaluation of sleep disordered breathing; page 58: January 2008 sleep lab record for excessive daytime somnolence diagnosed insomnia). (b.) The examiner should opine whether the sleep apnea diagnosed in 2016 is at least as likely as not caused OR aggravated by the Veteran's service-connected psychiatric disability. For this purpose, aggravation means any incremental increase in disability in a non-service-connected disability (i.e., any additional impairment of earning capacity) resulting from a service-connected condition, regardless of whether it is permanent. (c.) For each of the above, the examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Wheatley 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.