Citation Nr: 22017267 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 19-29 236 DATE: March 24, 2022 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. REASONS FOR REMAND The Veteran served on active duty for training from November 1997 to June 1998, and on active duty from January 2004 to February 2005, and August 2005 to July 2012, including in the Southwest Asia theater of operations. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied service connection for OSA. The Veteran filed a notice of disagreement (NOD) in January 2019, and a statement of the case (SOC) was issued in August 2019. In September 2019, the Veteran submitted a timely substantive appeal (VA Form 9). In November 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. In addition to the issue of service connection for OSA, the Board notes that the Veteran has appealed a May 2019 rating decision denying service connection for prostate cancer and a compensable rating for sinus headaches with migraines and an October 2019 rating decision which reduced the rating for sinusitis to zero percent, effective October 28, 2019. See August 2019 and December 2019 VA Forms 10182. These appeals will be addressed in a separate Board decision, if otherwise in order. 1. Entitlement to service connection for OSA The Veteran contends that his current OSA is the result of his military environmental exposures in the Southwest Asia theater of operations during the Gulf War. See Veteran Supplemental Claim, received May 25, 2018. Alternatively, he theorizes that his OSA is secondary to his service-connected posttraumatic stress disorder (PTSD) with major depressive disorder (MDD) and alcohol use disorder, gastroesophageal reflux disease (GERD) and allergic rhinitis. See Hearing Transcript. The Veteran's service treatment records are negative for notations of sleep apnea, snoring, or apneic episodes. In June 2008, the Veteran complained of insomnia and only sleeping three hours a night. The post-service clinical evidence shows that the Veteran underwent a sleep study and was diagnosed as having sleep apnea in 2018, approximately six years after separation from active duty. In August 2019, the Veteran submitted statements from fellow service members who indicated they witnessed the Veteran stop breathing and snore loudly during service. In August 2019, the Veteran was afforded an examination in connection with his claim. The examiner diagnosed OSA. The Veteran reported that during his military career he was told that he snored. He also reported difficulty sleeping and waking multiple times in the night. At the request of his wife, he underwent a sleep study in 2018, was told that he had sleep apnea, and was prescribed a c-pap. After reviewing the claims file and examining the Veteran, the examiner concluded that it was less likely than not that the Veteran's current sleep apnea was the result of service, including the reported insomnia. The examiner explained that "[OSA] is caused by a blockage of the airway, usually when the soft tissue in the back of the throat collapses during sleep. This is not caused by trouble sleeping or insomnia." The Board finds this opinion inadequate as the examiner failed to consider the lay statements of in-service snoring and apneic episodes. In addition, since that examination, the Veteran has raised an additional theory of service connection, i.e. secondary service connection. Under these circumstances, a remand is required to obtain a new VA opinion addressing both direct and secondary service connection. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The matters are REMANDED for the following action: 1. Obtain records of VA treatment since December 2020. 2. Schedule the Veteran for an examination to determine the nature and etiology of his current sleep apnea. After examining the Veteran and reviewing the record, the examiner should provide an opinion, with supporting rationale, as to the following: (a) Is it approximately at least as likely as not that the Veteran's current OSA had its inception during active duty or is otherwise related to the Veteran's active duty? In providing this opinion, the examiner should consider the relevant evidence of record, to include the documented reports of in-service insomnia and trouble sleeping, as well as the buddy statements of snoring and apneic episodes during service. The examiner should also consider the Veteran's reported symptoms in service and thereafter, including the nature, onset, progression and severity of his reported symptoms. If there is any medical reason to accept or reject the proposition that the reported symptoms in service and thereafter represented the onset of the current sleep apnea, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the current sleep apnea disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? The Board makes no credibility findings at this juncture, pending the opinion of the examiner. (b) If the examiner concludes that the Veteran's OSA is not incurred in service, then he or she should provide an opinion as to whether it is approximately at least as likely as not that the Veteran's OSA was caused or aggravated by his service-connected PTSD with MDD and alcohol disorder, GERD, and/or allergic rhinitis? If aggravation is found, the examiner must attempt to establish a baseline level of severity of the disability, prior to aggravation. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.N., 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.