Citation Nr: 22015877 Decision Date: 03/20/22 Archive Date: 03/20/22 DOCKET NO. 14-39 485 DATE: March 20, 2022 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to asthmatic bronchitis, is remanded. REASONS FOR REMAND The Veteran served honorably on active duty in the U.S. Marine Corps from April 1997 to September 2004. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in November 2018, March 2021, and July 2021. Unfortunately, remand is again required to obtain an adequate medical opinion on the etiology of the Veteran's sleep apnea. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007)(where VA provides the veteran with an examination in a service connection claim, the examination must be adequate). Most recently, VA obtained medical opinions in August 2021. The examiner opined that obstructive sleep apnea was not caused or aggravated by service-connected asthmatic bronchitis and was not otherwise etiologically related to the Veteran's period of service. In support of that opinion, the examiner found that sleep apnea was not diagnosed until 4 years after service and that there was no evidence of sleep apnea in service. The examiner also found that the Veteran's asthmatic bronchitis had been controlled, and his only complaint was congestion. As discussed below, the examiner failed to address relevant lay and medical evidence when providing those opinions and remand is necessary to attempt to secure adequate addendum opinions. Service connection was granted for "asthmatic bronchitis (claimed also as congestion)" in a May 2006 rating decision. That decision specifically discussed the Veteran's in-service congestion, and ongoing symptoms of congestion. Although the condition has been diagnosed as asthmatic bronchitis, it is clear VA intended for the symptom of congestion to be considered as part of the service-connected disability. The Veteran has consistently asserted that symptoms of sleep apnea have been chronic since service. At his September 2004 separation examination, the Veteran endorsed frequent trouble sleeping and explained that he was only able to sleep 2 to 3 hours per night and woke up 3 to 4 times per night. In April 2008, private treatment records showed that the Veteran had a history of snoring, apneic episodes, and significant daytime fatigue, indicating symptoms existed for some time prior to April 2008. A May 2008 private sleep study showed minimal sleep-related breathing disorder and the impression was mild obstructive sleep apnea. That report noted that the Veteran had a moderate degree of respiratory related arousals, and that most of the symptoms could be due to upper airways congestion. The Veteran underwent a polysomnography with CPAP titration in June 2008, the impression was obstructive sleep apnea, and the Veteran was placed on CPAP therapy. The doctor noted that attention should also be paid to the Veteran's history of nasal congestion as that would improve his overall outcome. In July 2008, the Veteran wrote that he has experienced symptoms of sleep deprivation, insomnia, and sleep apnea since active duty. He explained that he did not seek post-service treatment for the symptoms reported at separation because he thought his symptoms might improve. He explained that his symptoms did not improve, and he was eventually diagnosed with sleep apnea in 2008. He described symptoms of constantly falling asleep at work and during his commute. On remand, the examiner is requested to provide addendum opinions that address the lay testimony of chronic symptoms of interrupted, poor sleep since service; the September 2004 separation report of medical history; and the April to June 2008 private records indicating that the Veteran's sleep-related breathing disorder could be associated with upper airway congestion, and indicating that the symptoms had been chronic since prior to 2008. The Board acknowledges that the Veteran has submitted medical literature and lay testimony in support of his claim, but the record does not contain a positive medical opinion from a qualified medical provider that discusses the specifics of the Veteran's medical history. Thus, remand is required to attempt to obtain one. The Veteran is reminded that he may also submit an independent medical opinion if he desires. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Obtain an addendum opinion regarding the etiology of the claimed sleep apnea from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. (a.) The examiner must provide an opinion regarding whether sleep apnea had onset in, or is otherwise related to, active service. (b.) In providing this opinion, the examiner should discuss: 1) the September 2004 report of medical history documenting symptoms of chronic interrupted and poor sleep; 2) the July 2008 lay testimony of chronic symptoms of interrupted and poor sleep and daytime drowsiness since service; and 3) the April 2008 private record noting the Veteran had a history of snoring, apneic episodes, and significant daytime fatigue, indicating symptoms existed for some time prior to April 2008. (c.) The examiner must provide an opinion regarding whether sleep apnea is caused or aggravated by the service-connected asthmatic bronchitis and congestion. The examiner is reminded that service connection was also granted for the symptom of congestion per the May 2006 rating decision in the claims file. (d.) In providing this opinion, the examiner should discuss: 1) the May and June 2008 private diagnostic studies and accompanying reports that indicate the Veteran's sleep-related breathing disorder could be associated with upper airway congestion; 2) the medical treatises submitted by the Veteran in September 22, 2016 along with the Appellate Brief that indicate asthma can cause or worsen sleep apnea. 3. Confirm that all medical opinions provided comport with this remand and undertake any other development determined to be warranted. (Continued on the next page) 4. Then, readjudicate the appeal. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. D. Ware Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Smith, 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.