Citation Nr: 22018805 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 17-37 102 DATE: March 30, 2022 REMANDED Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran had active duty for training from June 2007 to September 2007 and active duty from May 2009 to May 2010. The Veteran testified in support of this claim during a March 2020 hearing before the undersigned Veterans Law Judge of the Board. A transcript of the proceeding is of record. In April 2020, the Board denied this claim, and, in response, the Veteran appealed to the higher U. S. Court of Appeals for Veterans Claims (Court/CAVC). In an October 2021 Memorandum Decision, the Court vacated the Board's decision denying this claim and remanded it back to the Board for further development and readjudication. The Court concluded the Board had failed to adequately analyze the probative value of the Veteran's lay history of headaches that was documented in the medical reports pre-dating his sleep apnea diagnosis and hinted the Board resultantly needs to consider obtaining additional medical comment. The Veteran's March 2010 Post-Deployment Health Assessment (PDHA) shows he reported problems sleeping or still feeling tired after sleeping, also headaches, and trouble breathing, An April 2010 Report of Medical Assessment indicates he believed his symptoms were related to vaccines that he had received. It was noted that "after vaccinations, [servicemember] subjectively reports occasional headaches, body aches, sleeping [and] breathing trouble, rash. Specific to vaccinations. Isolated. Currently asymptomatic." The Veteran separated from service in May 2010. In August 2011, the Veteran had a VA examination for general medical purposes; he cited several disabilities that he believed were due to his service including breathing difficulties and sleep disturbances. He indicated to the examiner that he had irregular sleeping patterns in that he could sleep from 10-12 hours, on occasion, and only sleep for 3 hours on another occasion. He reported tossing and turning while sleeping, but, notably, that his sleep cycles had improved since 2010 in that he is now usually slept 7-9 hours (although occasionally only slept 5 hours). It was noted that he worked the night shift, Sunday through Thursday, and sleeps longer on weekends. Regarding his mention of breathing difficulties, the Veteran reported, at times, getting intermittent feelings of chest pain that accompanied shortness of breath. His symptoms were described as rare in nature with the episodes occurring maybe one week out of a month, nothing precipitating them, nothing relieving them, lasting for up to two hours, and spontaneously starting and stopping. Concerning his headaches, the Veteran reported believing they had begun after receiving vaccinations. An October 2012 VA examination report indicates the Veteran recounted headaches occurring daily and starting late in the day, lasting two hours, and ending by the end of his work shift. He reported working the 9 pm to 6 am shift at work. Concerning the quality of his sleep, or lack thereof, he reported that the heat in Iraq had caused him to have fatigue and interrupted sleep while there, but that this since had resolved. It was noted that he "currently complains of acute onset and brief duration of self-resolving headaches with variable symptoms. Noted at work only. Most consistent with Tension type Headache that may be related to shift work and poor sleep due to daytime disturbances that does not allow restful sleep by veteran's history." The Veteran stopped working the night shift in June or July 2013 or thereabouts. An August 2013 VA record notes a complaint of morning headaches, and snoring, but also that no one had observed the Veteran stopping breathing during his sleep. An October 2013 VA clinical record reflects that he was not sure about snoring, as he slept only infrequently with his girlfriend and she had not reported it, only weird noises. He also denied morning headaches. An October 2013 VA sleep clinic note recounts there was reasonably significant risk of obstructive sleep apnea (OSA) based on the Veteran's history, family history, and weight gain with nighttime choking. This record indicates that he had gained approximately 40 pounds since separating from the military and was now considered obese (meaning as of 2013). There also is a January 2015 Disability Benefits Questionnaire (DBQ) regarding this claim concluding unfavorably essentially because the Veteran's symptoms in service were determined not likely attributable to OSA. But a subsequent February 2016 DBQ indicates the Veteran reported having headaches every morning even if he was able to tolerate his continuous positive airway pressure (CPAP) machine. It was noted that he had had some tension headaches, intermittently, but that chronic tension headaches could not be accurately diagnosed with so much confounding psychiatric morbidity (posttraumatic stress disorder (PTSD), depression, anxiety), as well as overlap with OSA related morning headaches. Because of the looming uncertainty over when the Veteran started having symptoms of OSA, including in relation to his attribution of this condition to his military service, the Board is obtaining more medical comment (a supplemental medical opinion) on this determinative issue. To this end, the examiner should discuss the risk factors for OSA as they pertain to this Veteran and the likelihood his symptoms in service of headaches and difficulty sleeping were early indicators or markers of OSA (i.e., prodromal signs) or if there were other more likely causes for his complaints. The examiner should additionally comment on the likelihood the eventual diagnosis 2013 was the product of symptoms that had onset after (verus during) the Veteran's service and, thus, are due to factors unrelated to his service. Accordingly, this claim is REMANDED for the following action: Obtain more medical comment as a supplemental or addendum to the January 2015 and February 2016 DBQs. More specifically, the examiner must discuss: a) any risk factors this Veteran had for OSA (e.g., weight/obesity, neck circumference, age), also whether there was anything unique to his service (e.g., vaccinations, etc.) that could account for his symptoms in service versus those he experienced after service. b) whether it is as likely as not (50 percent or greater probability) his reports during service of headaches and sleep difficulties were early (i.e., prodromal) indicators of OSA or if there, instead, are other more likely causes for his complaints and symptoms in service. c) whether it is as likely as not (50 percent or greater probability) his OSA eventually diagnosed in 2013 had incepted during his service versus since his service and owing to factors related versus unrelated to his service. When responding, the examiner is asked to specifically consider the most pertinent evidence of record, including: i) the Veteran's March 2010 Post-Deployment Health Assessment (PDHA); ii) an August 2011 VA examination for general medical purposes; iii) an October 2012 VA examination report; iv) 2013 VA clinical records regarding a sleep study and consequent diagnosis; v) the January 2015 DBQ for sleep apnea; and vi) the February 2016 DBQ for headaches. When responding, regardless of whether favorably or instead unfavorably, it is essential the examiner provide rationale preferably citing to findings or other evidence in the file supporting conclusions and/or accepted medical authority. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Wishard 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.