Citation Nr: 18145543 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 16-39 443 DATE: October 29, 2018 REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from June 1994 to July 2014. He is a recipient of the Combat Infantryman Badge. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas (Agency of Original Jurisdiction (AOJ)). The issue of entitlement to service connection for an anxiety disorder was also initially included with the appeal presently before the Board. However, in the interim period prior to the appeal coming before the Board, the AOJ granted service connection for adjustment disorder with anxiety in a September 2016 rating decision. As this represents a complete grant of the Veteran’s claim for entitlement to service connection for an anxiety disorder, this issue is no longer on appeal before the Board. See Grantham v. Brown, 114 F.3d 116 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). 1. Entitlement to service connection for obstructive sleep apnea is remanded. The Veteran contends that his obstructive sleep apnea began during service. Specifically, he indicates that he has had problems sleeping as a result of his combat experience in Iraq. He alleges that his service treatment records (STRs) document these sleep problems, but he says he never had a sleep study performed while he was on active duty. Sleep apnea is well-documented throughout the Veteran’s medical records. Shortly after discharge from service, the Veteran’s records note he endorsed being told he had sleep apnea, but it was not until January 2015 that a sleep study was conducted that confirmed the diagnosis. The Veteran suggests that because his sleep apnea manifested itself within one year post-service, this condition should be service-connected. However, the continuity and chronicity provisions of 38 C.F.R. § 3.303(b) only apply to the chronic diseases enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Because obstructive sleep apnea is not a chronic disease, service connection based on continuity of symptomatology is not warranted. 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). The record reflects that the Veteran has not received a VA examination for his obstructive sleep apnea. Furthermore, an opinion regarding the etiology of the Veteran’s obstructive sleep apnea has not been associated with the record either. As such, the Board will remand to obtain this opinion and to afford the Veteran the opportunity to present for an examination. The matter is REMANDED for the following action: 1. The AOJ shall associate the Veteran’s most recent outstanding VA medical treatment records with his file, specifically those records from September 2018 to the present. 2. Then, the Veteran should be afforded an appropriate VA examination in order to determine the current nature and etiology of his obstructive sleep apnea. The claims file must be made available to and be reviewed by the examiner. The examiner should specifically indicate whether the Veteran has obstructive sleep apnea, and provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such obstructive sleep apnea occurred in or is otherwise etiologically related to the Veteran’s military service. The examiner should consider the following: • the Veteran’s STRs documenting sleeping trouble; • the January 2015 sleep consult; and • the Veteran’s CAPRI medical records. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. Thereafter, readjudicate the claim. If any benefit sought on appeal remains denied, furnish the Veteran and his representative, if any, a supplemental statement of the case and an appropriate period of time to respond. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Victoria A. Narducci, Associate Counsel