Citation Nr: 21042267 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 17-11 542 DATE: July 12, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1990 to January 2003, and from February 2003 to January 2013. The Veteran has had a 100 percent combined VA schedular rating from September 19, 2019, and has been awarded special monthly compensation under 38 U.S.C. 1114(k) (loss of use of a creative organ) from February 1, 2013. This appeal comes to the Board of Veterans Appeals (Board) from a June 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to service connection for OSA is remanded. The Veteran has two theories of entitlement to service connection for OSA. First, he contends that OSA signs and symptoms began in service that was later diagnosed. The Veteran drew attention to his October 2012 DD Form 2807-1, where he reported frequent trouble sleeping with the explanation showing difficulty falling asleep and staying asleep, routinely waking up and still feeling tired. See NOD (July 2015). He also pointed to an October 2012 DD Form 2808 that, he stated, showed insomnia by history, indicating a sleep disorder. Id. He further stated that his wife would shake him awake regularly, said that he stopped breathing, and that, when snoring got bad, she would wake him up. See Buddy/Lay Statement (September 2019). He stated that he felt like he was choking on his own tongue when his wife would wake him up, and that, in the mornings, he would feel fatigued by the time he got to work. Id. The Veteran's wife provided a statement that she observed loud snoring in service beginning around September 2009 as well as the Veteran stopping to breathe while asleep and being fatigued in the morning. See Buddy/Lay Statement (September 2019). She stated that the snoring, breathing stoppage and fatigue continued in service and since. Id. Second, the Veteran contends that the OSA is secondary to his service-connected major depressive disorder (MDD). To that extent, the Veteran reported that between September 2009 and April 2011 during service, he had an extremely depressing time, including restless nights with difficulty falling and remaining asleep. See Buddy/Lay Statement (September 2019). The Board finds that remand is necessary to obtain a medical opinion as to the etiology of the Veteran's OSA. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In disability compensation (service connection) claims, VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. McLendon, supra. Further, to establish a claim for entitlement to secondary service connection, three criterions must be met. 38 C.F.R. § 3.310. A veteran must have (1) a current disability that is not already service-connected; (2) at least one service-connected disability; and (3) evidence that the non-service-connected disability is either proximately due to or the result of a service-connected disability, or, aggravated beyond its natural progress by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Here, the Veteran has a current diagnosis of OSA, found during a sleep study in March 2015. The Veteran is also in receipt of service connection for MDD. Next, the Veteran's service treatment records (STRs) show that, on his October 2012 Report of Medical History, the Veteran reported frequent trouble sleeping, "[d]ifficulty falling, and staying asleep, routinely wake up still feeling tired." See STR (May 2013). Moreover, the Board finds the Veteran's statements and lay reports credible, and he is competent to report the presence of symptoms such as snoring and daytime sleepiness. Further, the Board finds the lay statements, submitted on behalf of the Veteran, to be competent and credible evidence that the Veteran experienced snoring and breathing irregularities during service. See Buddy/Lay Statement (September 2019). The Board observes that the evidence needed to trigger VA's duty to furnish an examination is low. McLendon, 20 Vet. App. at 83. Accordingly, the competent and credible reports from the Veteran and lay witnesses are sufficient to trigger VA's duty to provide him with an examination to determine the nature and etiology for the OSA. VA has not yet obtained a medical opinion or examination on this matter. McLendon, 20 Vet. App. 79; 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4). The Board acknowledges the September 2019 private Disability Benefits Questionnaire (DBQ and accompanying medical opinion concluding that the Veteran's OSA "is more likely than not proximately due to or the result of his service connected major depressive disorder." See Medical Treatment Record - Non-Government Facility (September 2019). However, the Board finds the medical opinion inadequate to support the claim. Hayes v. Brown, 5 Vet. App. 60, 69 (1993). In determining the adequacy of a medical examination or opinion, an examination or opinion is considered adequate, "where it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's '"evaluation of the claimed disability will be a fully informed one.'" Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet. App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991))). In this case, the clinician appears to have relied Here, the medical opinion is inadequate for the following reasons. First, it is not definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). In this case, the opinion contains clear conclusions with some supporting data, but no reasoned medical explanation connecting the two. Second, the medical opinion cites, quotes, and references medical literature showing association between OSA and depression, however, the opinion does not provide reflect consideration of facts specific to the Veteran vis-à-vis the medical literature that was reviewed. See Bailey v. O'Rourke, 30 Vet. App. 54, 60 (2018) (stating that a medical rationale based solely on general medical literature without discussing the specific facts pertaining to a veteran's condition or individual circumstances is inadequate). Indeed, medical literature referenced in the opinion annotates a relationship based on association rather than causation. For instance, the opinion quotes, "that frequent snorting and apneic periods while sleeping was associated in a higher prevalence in patients with a diagnosis of major depression." Thus, the bulk of the rationale provided by the opinion reflects an analysis based on association rather than causation. See Atencio v. O'Rourke, 30 Vet. App. 74, 90-91 (2018) (holding that a medical opinion was inadequate when it was unclear whether the examiner had clearly provided a rationale that dealt with causation and aggravation as independent concepts). It is noted that direct service connection and secondary service connection requires a causal relationship (not an association) between the current disability and the in-service disease or injury and/or service-connected disability. See Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); see also Allen, 7 Vet. App. 439. Thus, the Board finds the private medical opinion inadequate to support the claim. The Board has considered other Board decisions that the Veteran submitted in support of his claim. However, prior Board decisions are not precedential or binding on other veterans. See 38 C.F.R. § 20.1303; see also Lynch v. Gober, 11 Vet. App. 22, 27 (1997), vacated on other grounds sub nom. Lynch v. West, 178 F.3d 1312 (Fed. Cir. 1998); Hillyard v. Derwinski, 1 Vet. App. 349, 351 (1999). Prior decisions in other appeals "may be considered in a case to the extent that they reasonably relate to the case, but each case presented to the Board will be decided on the basis of the individual facts of the case in light of applicable procedure and substantive law." See 38 C.F.R. § 20.1303; see also Percy v. Shinseki, 23 Vet. App. 37, 44 (2009) ("The word may clearly connotes discretion") (citing Fogerty v. Fantasy Inc., 510 U.S. 517, 533 (1994)); see also Hudgens v. Gibson, 26 Vet. App. 558, 562 at n.5 (2014) (citing 57 Fed. Reg. 4088, 4103 (Feb. 3, 1992) "[U]niformity will be achieved on important questions through precedent decisions of the United States Court of Veterans Appeals."). Nevertheless, in view of the record, the Board believes that VA's duty to obtain a VA examination and medical opinion is triggered in this case. VA has not yet obtained an examination or medical opinion in this matter. McLendon, 20 Vet. App. at 79. Additionally, development is required to attempt to obtain additional service records. First, the Veteran's complete STRs are not associated with the claims file. The Veteran has submitted additional STRs that had not been associated with the Veteran's file, suggesting that additional STRs may be outstanding. The Veteran's service personnel records (SPRs) spanning more than 20 years of his career have not been associated with the file and no requests for such have been made. Therefore, the Board finds that remand is necessary for the RO to obtain the relevant STRs and SPRs. Lastly, no VA treatment records have been associated with the Veteran's file. Such should be obtained and associated with the Veteran's file on remand. Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016) (the Federal Circuit held that 38 C.F.R. § 3.159(c)(3) extends VA's duty to assist in obtaining sufficiently identified VA medical records, regardless of their relevance). The matters are REMANDED for the following action: 1. Request and obtain complete STRs and SPRs pertaining to the Veteran from all potential repositories to include the Department of the Army and National Personnel Records Center. All attempts to obtain such records should be clearly documented in the claim file. If it is determined that such records do not exist or are otherwise unavailable, a formal finding of unavailability should be made and associated with the claim file. 2. If any records cannot be obtained, provide the Veteran with a proper notice that meets the requirements under 38 U.S.C. § 5103(A)(b)(2) and 38 C.F.R. § 3.159(e), and includes (a) the identity of specific records that cannot be obtained, (b) an explanation as to the efforts that were made to obtain those records, (c) a description of any further action to be taken by VA with respect to the claim, and (d) that the Veteran is ultimately responsible for providing the evidence. Such notice should also inform the Veteran of alternative sources of evidence that may be submitted in place of his missing service records. 3. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen since service discharge for signs, symptoms, and treatment of OSA. 4. Obtain the Veteran's VA treatment records to the Present. 5. Thereafter, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his OSA. The medical opinion should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). The examiner must opine on: (a.) Whether OSA at least as likely as not had its onset in service or is otherwise related to an in-service injury, event, or disease. Consider whether symptoms of snoring, daytime tiredness sleepiness demonstrate onset of OSA in service and indicate whether such symptoms may be due other causes. The medical opinion must reflect consideration of the Veteran's lay reports, to include experiencing daytime sleepiness and loud snoring. Further, the medical opinion must reflect consideration of the lay reports submitted by lay witness, the Veteran's wife, on behalf of the Veteran, in 2019. (b.) Whether OSA at least as likely as not (i) is proximately due to service-connected MDD, or (ii) aggravated beyond its natural progression by service-connected MDD. A separate rationale is required for the causation and aggravation prongs of secondary service connection as these are independent concepts. NOTE (1): An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. NOTE (2): An adequate medical opinion may not be predicated solely on the absence of literature supporting causation or aggravation without discussing those facts specific to this Veteran. 6. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. M. Pesin 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.