Citation Nr: 22015308 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 16-56 758 DATE: March 17, 2022 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA), claimed as a sleep disorder is remanded. REASONS FOR REMAND The Veteran had active service with the Army from November 2002 to November 2003. This matter is before the Board of Veterans' Appeals (the Board) on appeal from a November 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2019 and November 2021, the Board remanded the Veteran's claim for additional development. The Board regrets the delay but finds additional development is necessary prior to final adjudication of his claim. The Veteran contends he is entitled to service connection for his OSA due to his active service. He slept on cots, boxes of water, and the ground during deployment as well as near generators that ran constantly. These living conditions made it almost impossible for him to tell if he was having sleep issues due to a medical issue or for environmental reasons. However, he reported sleep issues as part of his post-deployment health assessment. After demobilizing, he sought medical treatment for issues he might have from his service at a VA medical center. He reported symptoms since his November 2003 discharge, but it took them several years to diagnose OSA. Additionally, his wife submitted a statement about the sleep issues she witnessed since his deployment. In the November 2021 remand, the Board found the December 2019 VA examination for OSA raised another theory of entitlement. The examiner's rationale noted symptoms of snoring, fatigue, and insomnia could be due to a myriad of causes including his service-connected chronic fatigue syndrome (CFS). Therefore, the OSA claim was remanded for an addendum opinion to address this secondary theory of service connection. The reviewing clinician was asked to specifically address the Veteran's contentions and lay statements regarding onset of symptomatology and any continuity of symptomatology since discharge from service or since onset of symptomatology in rendering the opinion. In November 2021, a VA examiner opined the Veteran's claimed OSA was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The Veteran's OSA was diagnosed 11 years after his separation from service and a negative sleep study in May 2010. It was not at least as likely as not that the Veteran's OSA was caused by his service-connected disabilities to include CFS. The current literature does not support CFS as a common etiology of OSA. It was not as likely as not that the Veteran's OSA was aggravated beyond its natural progression by his service-connected disabilities to include CFS. Aggravation beyond the natural progression could not be determined. An opinion could not be provided without resorting to speculation because sleep apnea could progress differently among different patients. In response to the request for the VA examiner to address the Veteran's contentions and lay statements regarding the onset of his symptomatology and any continuity of symptoms since his discharge from service, the examiner noted a negative sleep study was performed after service. OSA is a chronic condition, so it did not develop until after service. The January 2022 appellate brief submitted by the Veteran's representative argued the November 2021 VA examination was inadequate. The examiner opined to a negative nexus for OSA because OSA was diagnosed 11 years after his separation from service and he had a negative sleep study in May 2010. The representative contends that one negative first night study is not sufficient to exclude OSA when the record showed one or more of the clinical markers of the disease. The Veteran provided lay evidence to demonstrate symptomatology of OSA since service. The Board notes that the November 2021 VA examiner failed to adequately consider the following: In a September 2003 post-deployment health assessment, the Veteran reported feeling tired after sleeping during his deployment. In a July 2005 VA treatment record, he reported sleep walking and talking in his sleep. In February 2009, he complained of sleeping difficulties and insomnia. In April 2010, he reported waking up several times a night and being tired at work. His wife stated that he snored loudly. He was given a provisional diagnosis of repetitive intrusions of sleep, periodic limb movement disorder, and snoring/fatigue. In June and July 2010, he continued to report to doctors that he was exhausted and falling asleep at work as well as sitting at red lights. He was diagnosed with insomnia in May 2011. In September 2013, his wife reported he was snoring and gasping for air. He continued to report daytime fatigue in April 2014 and a sleep study was requested. The May 2014 sleep study diagnosed mild obstructive sleep apnea. In August 2014, L.K. (NP), the Veteran's treating provider, opined he began treating with the VA in 2003. He first mentioned problems sleep walking in July 2005. In February 2009 he complained of insomnia. In April 2010 he complained of a sleep disorder since service, that he was waking in his sleep, and snoring. His May 2010 sleep study was normal, but he was prescribed Ambien and then Trazadone for his sleep issues in June 2010. Due to his continued fatigue, testing was done in January 2013 and very low vitamin D was discovered. A CPAP was recommended following the 2014 sleep study results. In December 2014, A.B., the Veteran's wife since September 1991, reported noticing many medical issues since her husband's return from deployment in 2003. His snoring started as soon as he returned. Their bedroom was over the kitchen and his snoring was so bad it rattled the dishes. His snoring made it difficult for both of them to get a good night's sleep. The CPAP machine made a difference with his snoring. Since his return from deployment, there were times when he had no energy at all and would sleep or lay around the entire day because he did not sleep the night before. This did not happen prior to his deployment. He also told her that he was falling asleep at work and had taken off work to go home and sleep because he could not make it through the day. The November 2021 VA opinion failed to comply with the November 2021 remand directive. The reviewing clinician failed to specifically address the Veteran's lay statements regarding continuity of symptomatology since service. Therefore, the Board finds another opinion is necessary to make a fully informed decision. The matters are REMANDED for the following action: 1. Thereafter, schedule the Veteran for a VA examination with an appropriate clinician regarding the nature and etiology of his OSA condition. The examiner is asked to opine on the following: If it is at least as likely as not that his OSA had its onset in service or was otherwise etiologically related to any event or circumstance of his service. If it is at least as likely as not that his current OSA was proximately due to or aggravated beyond its natural progression by his service-connected CFS, irritable bowel syndrome, tinnitus, coronary artery disease, or left ear hearing loss. If aggravation is found, the examiner should state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record as well as the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. The complete record, to include a copy of this remand and the claims folder, must be made available to and reviewed by the examiner in conjunction with the examination. The examination report must include a notation that this record review took place. 2. After completion of the above and any additional development deemed necessary to determine the nature and extent of any employment during the pendency of this appeal, the issue on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for further consideration. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.L. Byers 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.