Citation Nr: 22015017 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 17-18 870 DATE: March 16, 2022 REMANDED Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1984 to January 1988, from February 1991 to April 1991, and from March 2006 to May 2006, with additional service in the Air National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claim for service connection was remanded by the Board in October 2019 and August 2021. Unfortunately, the Veteran's claim must be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide his claim, so he is afforded every possible consideration. The Veteran's claim for service connection was remanded in August 2021 to afford him an examination and medical opinions to determine the nature and etiology of his sleep apnea. Subsequently, the Veteran was provided with a September 2021 Sleep Apnea Disability Benefits Questionnaire. The September 2021 examination report states that the Veteran has a diagnosis of obstructive sleep apnea. The medical history section provides that the Veteran's condition began in the 1990s and that his symptoms at that time included producing noises and stopped breathing during sleep and snoring. A corresponding September 2021 medical opinion provides that it is less likely than not that Veteran's obstructive sleep apnea is causally related to his active service. The medical opinion provides that there is no documentation of injury to the Veteran's anatomy or structure that affect airway size, shape, or compliance. Obstructive sleep apnea is due to anatomic factors that promote pharyngeal narrowing, including large neck circumference, cervical soft tissue, vessels, and bony structures. Many of these factors promote pharyngeal collapsibility by decreasing the caliber of the upper airway or by increasing the upper airway surrounding pressure. The above medical opinion is inadequate as it is based, at least in part, upon an absence of contemporaneous documentation of injury to the Veteran, as it appears the Veteran's lay statements concerning the subject were discounted solely because there was no objective evidence indicating that he sustained an injury during his active service. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that a VA opinion was inadequate where the examiner did not comment on the Veteran's report of in-service injury and relied on lack of evidence in service medical records to provide a negative opinion). An additional September 2021 medical opinion provides that it is less likely than not that the Veteran's obstructive sleep apnea was caused or worsened by his service-connected temporomandibular joint dysfunction. In support, the medical opinion provides that while an association between obstructive sleep apnea and temporomandibular joint dysfunction has been identified, association does not imply causation. There is no data or research that provides clear and consistent evidence of an etiopathogenic relationship between temporomandibular joint dysfunction and the development of obstructive sleep apnea. The Board finds that the above medical opinion is inadequate as it fails to analyze the relationship between the Veteran's specific obstructive sleep apnea and temporomandibular joint dysfunction and relies on an improper evidentiary standard. First, the medical opinion essentially rests upon general conclusions from medical literature that is not cited, without consideration of the specific facts of the case. Additionally, the medical opinion states that there is no clear and consistent evidence of a relationship between obstructive sleep apnea and temporomandibular joint dysfunction rather than determining whether it is at least as likely as not that the Veteran's temporomandibular joint dysfunction caused his obstructive sleep apnea. The matters are REMANDED for the following action: 1. Ask the Veteran to identify any outstanding treatment records relevant to his claim. All identified VA records should be added to the claims file, to include records dated since March 2021. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, the claims file should be sent to an appropriate examiner to offer an opinion as to the following: a) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's obstructive sleep apnea had its clinical onset during active service or is related to any incident of service, to include evidence of record indicating the Veteran's exposure to pesticides and aqueous film forming foam (AFFF). See August 13, 2020, Buddy/Lay Statement. In providing this opinion, the examiner must consider the lay statements contained in the Veteran's claims folder concerning his reported and observed symptoms during and after his active service. b) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's obstructive sleep apnea is proximately due to service-connected temporomandibular joint dysfunction. A rationale for all opinions offered is requested as adjudicators are precluded from making any medical findings. If the requested opinions cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an opinion. ROBERT N. SCARDUZIO Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mussey, Sean 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.