Citation Nr: 22004286 Decision Date: 01/27/22 Archive Date: 01/27/22 DOCKET NO. 14-35 365 DATE: January 27, 2022 REMANDED Entitlement to service connection for a sleep disorder, to include as secondary to service-connected hypoventilation/hypoxia, is remanded. REASONS FOR REMAND The Veteran served on active duty from April 2001 to April 2005, including service in Southwest Asia from March 2003 to December 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board acknowledges that the Veteran requested a hearing before a Veterans Law Judge by live videoconference hearing. Thereafter, a videoconference hearing was scheduled for December 2014. In December 2014, prior to the Board hearing, the Veteran submitted a personal appearance verification form requesting to cancel the Board hearing. Accordingly, the Veteran's request for a hearing is considered to be withdrawn. 38 C.F.R. § 20.704(d). This matter was previously before the Board in May 2018, May 2020, March 2021, and most recently in October 2021. The matter has returned to the Board for adjudication. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The Veteran contends that his sleep disorder had an onset in service or is otherwise related to his service, to include as due to exposure to environmental hazards from service in Southwest Asia. The October 2021 Board decision remanded the issue as it found that the August 2021 VA medical opinion for sleep apnea was inadequate. In this regard, the Board found that the April 2021 VA examination report confirmed that the Veteran had a diagnosis of obstructive sleep apnea. The August 2021 addendum opinion only addressed whether the Veteran's sleep apnea was secondary to his service-connected hypoventilation/hypoxia and did not address direct service connection. The August 2021 VA examiner provided a negative nexus opinion for secondary service connection and based the opinion on the Veteran's hypoventilation/hypoxia being asymptomatic at the time of the examination; however, the Board noted that the Veteran has been service-connected for this condition since September 2011. Based on these deficiencies, the Board remanded the issue for a new medical opinion. Pursuant to the October 2021 Board remand instructions, the RO obtained an addendum medical opinion in November 2021. The examiner opined that the condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. First, the examiner indicated that there is an apparent error in the diagnosis of hypoxia and hypoventilation and that is it is not a chronic and separate condition and should not be service connected as such. He noted that service connection should depend only on service connection for sleep apnea or sleep-disordered breathing. Furthermore, the examiner stated that the Veteran does not have obstructed sleep apnea and has moderate sleep-related respiratory impairment with oxygen desaturation. He stated regardless, there is no evidence of support a diagnosis in service and the Veteran and his wife's report do not constitute a diagnosis of obstructive sleep apnea or sleep-disordered breathing. He discussed that normal individuals may have witnessed or unwitnessed, intermittent episodes of apnea but this does not constitute a diagnosis of obstructive sleep apnea or sleep-disordered breathing. The hypoxia and hypoventilation are consistent with the diagnosis of sleep-disordered breathing, but nonetheless, it is less likely than not due to service and it is not due to exposures while in service. He also found that regarding secondary service connection and aggravation, the question was moot because the Veteran was incorrectly service connected for hypoventilation and hypoxia. The hypoventilation and hypoxia are byproducts of sleep-disordered breathing and therefore, could not cause or aggravate the condition. He noted that the prior opinion misinterpreted the etiology of the hypoventilation and hypoxemia as a separate, stand-alone diagnosis and should not have been service connected. Here, the Board finds that the November 2021 medical opinion is inadequate. The VA examiner appears to be determining whether service connection was in error for the grant of hypoventilation/hypoxia when in fact, the condition has been service connected and in effect since September 2011, as noted by the October 2021 Board decision. Additionally, the VA examiner found that there is no diagnosis of obstructive sleep apnea, despite that the condition was diagnosed at the May 2021 VA examination. He proceeded to explain that regardless of the diagnosis of the Veteran's sleep disorder, there is no evidence to support a diagnosis in service and that the Veteran and his wife's statements did not constitute a diagnosis of obstructive sleep apnea or sleep-disordered breathing. The Board observes that the lay statements are consideration of his sleep symptomatology and reflects observable symptoms by the Veteran and his wife. However, the examiner appeared to discount the lay statements as they did not contain a diagnosis of sleep apnea or sleep-disordered breathing and only noted symptoms that the Veteran experienced. As the November 2021 was based on an inaccurate factual premise, the Board finds that the matter must be remanded to obtain an addendum medical opinion. Remand is also warranted to reconcile the varying diagnoses related to the Veteran's sleep disorder and to determine the nature and etiology of such condition. There is conflicting evidence/information in the record regarding the nature and diagnosis of the Veteran's sleep disorder. The Board finds that the medical opinions of record are conflicting and require further clarification. As such, remand is warranted to obtain an addendum medical opinion that clarifies the nature of the Veteran's sleep disorder. The matters are REMANDED for the following action: 1. Obtain VA treatment records from October 2021 to present. All reasonable attempts should be made to obtain any identified records. 2. Arrange for a VA addendum medical opinion by a VA examiner other than the previous examiners to address the claim for a sleep disorder. The examiner should have appropriate expertise in respiratory disorders. The decision for an in-person examination of the Veteran is left to the discretion of the examiner. The electronic records, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: a) The examiner must determine whether the Veteran has a separate diagnosable disability (other than hypoventilation/hypoxia) manifested as a sleep disorder, to include sleep apnea. If a separately diagnosable condition is not warranted, the examiner must give a thorough rationale for why this is so, to include discussion of the prior diagnoses of sleep apnea and why those diagnoses were made in error. The examiner is reminded the Veteran has been service-connected for hypoventilation/hypoxia since September 2011. b) Regardless of whether a separately diagnosable condition is warranted or not, the examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that such disability had an onset in service or was otherwise related to military service, to include as due to environmental hazards from his conceded exposure in Southwest Asia? In offering the above opinions, the examiner must include a discussion of the following evidence: 1) the Veteran's and his spouse's lay statements, See October 2012 Lay Statement; December 2012 Statement in Support of Claim, 2) the Veteran's statement that he saw the doctor several times during his deployment to Iraq, complaining of fatigue, sleepiness, insomnia, anxiety, irritability, headaches, snoring, and breathing cessation during sleep but the service treatments never made it back to the U.S. at the end of his deployment, See December 2018 Correspondence, 3) September 2011 and December 2011 treatment records at El Paso Sleep Center that diagnosed the Veteran with sleep apnea, 4) an April 2013 letter from his treating physician at El Paso Sleep Center that indicated the Veteran is under his care for the condition of obstructive sleep apnea and was first diagnosed in June of 2011, and 5) the October 2019 and April 2021 VA examinations that diagnosed the Veteran with obstructive sleep apnea. In considering any lay statements of record, the examiner should note that the Veteran is competent to attest to matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiners should provide a fully reasoned explanation. The examiner is reminded that rationale for a negative opinion must not be based solely on the lack of a relevant in-service diagnosis or clinical findings and must reflect consideration of the competent lay assertions of pertinent symptomology from service to the present. All opinions or findings provided must include an explanation for the bases for the opinion. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain why an opinion cannot be provided without resort to speculation. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Kim, 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.