Citation Nr: 18154536 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 16-54 001 DATE: November 30, 2018 REMANDED Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 2001 to July 2007. Entitlement to service connection for sleep apnea is remanded. Regrettably, a remand is necessary as additional development is required before adjudication can proceed. The Board has found that the opinion provided in the February 2016 VA examination is inadequate. The examiner opinion rationale rests on the fact that the Veteran was not diagnosed with sleep apnea in service. This fact is not fatal to the Veteran’s claim for service connection. As the Veteran contends, that he had symptoms in service which were later diagnosed. Moreover, the examiner seems to rely on the response the Veteran’s May 2007 “Report of Medical History” wherein he wrote that he wakes every hour with leg twitching and Department of Defense (DoD) clinician wrote that this resolved without sequela. The Board points out that this same DoD clinician wrote the same thing regarding complaints the Veteran had of ringing in his ear and back pain both of which were granted by VA. Thus, the VA examiner’s rationale can be distilled down to the fact that the Veteran was not diagnosed with sleep apnea in service. This is insufficient. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) The matter is REMANDED for the following action: 1. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his disabilities. The Veteran should be requested to sign any necessary authorization for release of medical records to VA, and appropriate steps should be made to obtain any identified records. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. If the records are unavailable, notify the Veteran in accordance with 38 C.F.R. § 3.159. 2. Schedule the Veteran for an appropriate VA examination with an appropriate VA examiner, other than the one who conducted the February 2016 examination, to identify any sleep disorders, to include sleep apnea, and their etiology(s), and determine the etiology of the Veteran’s sleep apnea. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. A notation to the effect that this review has taken place should be made in the evaluation report. All studies, tests, and evaluations should be performed as deemed necessary by the examiner, and the results of any testing must be included in the examination report. (a) After considering the pertinent information in the record in its entirety, the VA examiner should identify any sleep disorders, to include sleep apnea. The examiner is asked to opine as to whether it is at least as likely as not i.e. 50 percent probability or greater, that any sleep disorder identified, to include sleep apnea, was incurred or aggravated by his active duty OR is otherwise etiologically related to his active service, and if not why. IN PROVIDING AN OPINION THE EXAMINER SHOULD EXPLICITLY REMARK ON: (i) the Veteran May 2007 “Report of Medical History” wherein the Veteran wrote that he “wake[s] every hour leg twitches” and indicated that he has frequent trouble sleeping. Additionally, the Board is aware that the DoD clinician wrote that this resolved without sequela and is not persuaded by the DoD remark as the VA has service connected the Veteran for two other disabilities which the DoD clinician wrote resolved without sequela. (ii) The examiner should take a detailed history from the Veteran regarding the onset of his sleep disorder symptoms, to include sleep apnea, and any continuity of symptoms since that time. (iii) The examiner should comment on the Veteran’s “buddy statements” from June 2016 wherein fellow Veterans observed the Veteran snoring and irregular breathing problems. (iv) The February 2015 private sleep study provided by the Veteran wherein the clinician wrote in clinical information that the Veteran had “leg kicking.” 3. Ensure that the examination report complies with this remand and the questions presented in this request. If the report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. 4. After completing the requested actions and any additional notification and/or development deemed warranted, readjudicate the issues on appeal. If the benefit sought on appeal is not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded the appropriate time period for response. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Acosta, Counsel