Citation Nr: 18156713 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 07-12 489 DATE: December 11, 2018 REMANDED Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran had active service in the United States Army from November 1977 to November 1980. Although a videoconference hearing was held in January 2012, service connection for sleep apnea was not addressed. 1. Entitlement to service connection for sleep apnea. In its July 2017, decision the Board denied the Veteran’s claim for service connection for sleep apnea. Upon appeal, the United States Court of Appeals for Veterans Claims (Court) remanded the claim to the Board for action consistent with the Joint Motion for Partial Remand (JMPR), submitted by the parties. The JMPR directed that issues pertaining to lay statements and a VA examination be considered and there be a hearing on the claim. Under 38 U.S.C. § 5103A (d)(2), VA must provide a medical examination and/or obtain a medical opinion when there is: (1) competent evidence that the Veteran has a current disability; (2) evidence establishing that he suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period; (3) an indication the current disability or symptoms may be associated with service; and (4) there is not sufficient medical evidence to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The August 2007 polysomnography identified the Veteran’s current disability as “mild obstructive sleep apnea.” The Veteran has asserted in the statement accompanying his May 2011 Notice of Disagreement that, while in service, he received several Article 15 non-judicial punishments. However, he adds that that sleep apnea symptoms induced the “mood swings and personality changes” which resulted in his violations, indicating that obstructive sleep apnea may have occurred in service, as well as presenting the Board with the reasonable possibility of his current disorder being associated with service. Moreover, without more medical findings, the Board cannot make a decision. For these reasons, a VA examination for obstructive sleep apnea is necessary. The matter is REMANDED for the following action: 1. Contact the Veteran and/or his representative for information pertaining to any current treatment for sleep apnea and/or obstructive sleep apnea at any VA facility and by any private treatment provider. Obtain any records of the above treatments not yet associated with the claims file and associate them with the claims file. The assistance of the Veteran and/or his representative should be requested in obtaining any records of recent treatment as indicated. All attempts to obtain records should be documented in the claims file. 2. After all additional records have been obtained and associated with the claims file, but whether or not records are obtained, arrange for an examination conducted by a VA examiner with an appropriate specialty for producing findings for sleep disorders. The complete electronic claims file must be made available to the examiner in conjunction with the examinations. The examiner should detail all findings. The examination should provide findings and diagnoses as to the nature, extent and current severity of sleep apnea and/or obstructive sleep apnea. The examiner is requested to review the findings of the August 2007 polysomnography report for possible indications of the onset of sleep apnea and/or obstructive sleep apnea or its cause during the period of the Veteran’s active service. The examiner is further requested to review and comment on the statement accompanying the Veteran’s May 2011 Notice of Disagreement, in which he suggests the in-service sleep apnea symptoms induced “mood swings and personality changes,” thereby causing him to commit violations resulting in non-judicial punishments (under Article 15) while in service. The examiner is further requested to render an opinion, addressing the following: Whether it is more likely than not (more than a 50 percent probability) or less likely than not (less than a 50 percent probability) that sleep apnea was directly caused by an event, injury or illness during the Veteran’s active service or is etiologically related to it. The opinion must be explained by an adequate rationale, by which the examiner’s conclusions are supported by direct references to clinical findings made on examination, to the Veteran’s treatment records and/or to medical literature. The examiner should comment on the findings and opinions of other examiners, which appear in the record. In addition, the examiner should acknowledge, address, consider, and discuss all lay evidence in the record pertaining to sleep apnea and/or obstructive sleep apnea, including the Veteran’s lay statements, any lay statements of his wife, other family members, friends, co-workers, or others, as well as the Veteran’s reports to providers, as they appear throughout the record. Findings should be reconciled with other records on file to the extent possible. 3. After completing the above development and any other indicated development, readjudicate the claim. If the benefits sought are not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond.   4. Thereafter, only if, upon readjudication, the Veteran receives a denial of the benefits sought, then arrange for a videoconference hearing in accordance with applicable procedures. Notify the Veteran and his representative with the information necessary for their attendance at the hearing. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Franke, Associate Counsel