Citation Nr: 21041945 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 15-08 508 DATE: July 10, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1995 to October 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision by the Department of Veterans Affairs (VA). This case was remanded in June 2018 and September 2020 for further development; it has since been re-assigned to the undersigned. The Board notes that the Veteran did not identify whether he wished to have a Board hearing. See March 2015 substantive appeal (Form 9). VA sought clarification in May 2021 correspondence, and the Veteran did not respond. As a result, the Board finds that he does not wish to have a hearing and will proceed with adjudication. Entitlement to service connection for obstructive sleep apnea. In August 2012 VA treatment records, the Veteran reported that he has had sleep disturbances since 2003 or 2004, which would be during service. It appears from service treatment records (STRs) that the Veteran gained about 20 pounds (lbs.) in weight by his separation from service. See August 2004 STRs. A November 2020 VA examiner opined it was less likely than not that the Veteran's obstructive sleep apnea is related to his military service. The examiner discussed that the Veteran's STRs do not show complaints of daytime somnolence, non-restorative sleep, or fatigue that would support a history of underlying sleep apnea during service. This opinion is inadequate because it relies on the absence of evidence in medical records and did not discuss the Veteran's report of sleep problems since service. As a result, remand for a new opinion is necessary. The Veteran also asserts that his obstructive sleep apnea is related to his service-connected traumatic brain injury (TBI) and reported that his physician told him his current problems were the result of his TBI. See December 2012 statement. The November 2020 VA examiner also opined that it was less likely than not that the Veteran's service-connected TBI caused or aggravated his obstructive sleep apnea. The examiner discussed that severe TBIs are known to cause central sleep apnea, but the Veteran is diagnosed with obstructive sleep apnea, which is due to the anatomic narrowing of the airway causing airflow disturbance during sleep. This opinion is inadequate because it did not explain why TBIs do not cause the narrowing of the airway associated with obstructive sleep apnea. The examiner's opinion regarding aggravation is also inadequate because it relied on the absence of evidence in medical records. As a result, remand is necessary for new opinions regarding secondary service connection. The matter is REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records from May 2020 to the present. 2. After the above development is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of his obstructive sleep apnea. All reasonable efforts should be made to provide the Veteran with at least 2 weeks' notice of the scheduled VA examination. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Is it at least as likely as not (50% or greater probability) that the Veteran's obstructive sleep apnea was either incurred in or otherwise related to his active duty service? Please explain why. The examiner may not solely rely on an absence of evidence in STRs or medical records immediately after service. The examiner should discuss the Veteran's report of sleep disturbances starting in 2003 or 2004 and any weight gain during service, eliciting more lay statements from the Veteran as needed. (b.) Is it at least as likely as not (50% or greater probability) that the Veteran's obstructive sleep apnea was either caused or aggravated by his service-connected TBI? Please explain why. The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. The examiner may not rely solely on the absence of evidence in medical records or medical literature. The examiner should also discuss, as necessary, that the Veteran's physician told him that his problems were a result of his TBI. 3. If upon completion of the above action the issue remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Sandler, 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.