Citation Nr: 22040160
Decision Date: 07/13/22	Archive Date: 07/13/22

DOCKET NO. 17-40 714
DATE: July 13, 2022

REMANDED

Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected unspecified trauma and stressor disorder/unspecified depressive disorder (hereinafter acquired psychiatric disability,) is remanded.

REASONS FOR REMAND

The Veteran served on active duty from December 1984 to December 2004.

He testified at a videoconference hearing before the undersigned in August 2021, a transcript is of record.

This issue was previously before the Board in March 2022 at which time it was remanded for further development.  Unfortunately, remand is again required.

Once VA undertakes an examination, an adequate one must be produced.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination.  Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992).

In its March 2022 decision, the Board directed the agency of original jurisdiction (AOJ) to obtain an etiology opinion regarding the Veteran's obstructive sleep apnea that considered both direct and secondary service connection.  

The Veteran underwent a sleep apnea examination in May 2022; however, the opinion obtained addressing the etiology of sleep apnea is inadequate.  Specifically, regarding direct service connection, the examiner opined that the Veteran's obstructive sleep apnea was less likely than not incurred in or caused by his active service.  By way of rationale, she noted that the Veteran provided compelling self-reports of obstructive sleep apnea symptoms during service, but that these symptoms could also be indicative of other sleep-related disorders.  The examiner failed to explain or discuss why the Veteran's reported symptoms were more likely due to another identified disorder rather than sleep apnea. Moreover, although the examiner also concluded that the current sleep apnea disability was less likely related to exposure to burn pits during service, the examiner provided no rationale to support this conclusion.

Remand is warranted so that a new opinion may be obtained that adequately addresses the etiology of the Veteran's claimed obstructive sleep apnea.

The matters are REMANDED for the following action:

1. Obtain a medical opinion addressing the etiology of the Veteran's sleep apnea from a clinician other than the May 2022 examiner.  The claims folder must be made available to and reviewed by the opinion provider.  Upon review of the file, the opinion provider should provide responses to the following:

Is it at least as likely as not (approximately 50 percent or greater probability) that the Veteran's obstructive sleep apnea had onset in, or is otherwise related to his active service, to include specifically to exposure to burn pits in Southwest Asia?

In responding to the above question, the VA examiner is asked to consider the Veteran's assertion that loud snoring and daytime tiredness during service were indicative of in-service onset of obstructive sleep apnea.  If there is medical reason that supports or calls into question the Veteran's report of history, this should be explained.  Even if in-service onset cannot be established, the opinion provider should provide an opinion as to whether the current disability may be related to in-service exposure to burn pits.

The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed report.  Complete rationale should include an explanation of the evidence used in support of the conclusion, as well as an explanation as to why such evidence supports the conclusion.

2. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal.   

 

V. Chiappetta

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	L. Bristow Williams, 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.