Citation Nr: 18157091
Decision Date: 12/11/18	Archive Date: 12/11/18

DOCKET NO. 10-33 110
DATE:	December 11, 2018
REMANDED
Entitlement to service connection for obstructive sleep apnea is remanded.
REASONS FOR REMAND
The appellant served on active duty in the Army from June 1984 to August 1984 and from January 1987 to April 2006, including service in Somalia, Bosnia, and Iraq.  He is the recipient of multiple awards and decorations, to include the Bronze Star Medal.
This matter comes before the Board of Veterans’ Appeals (Board) from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which, inter alia, denied service connection for obstructive sleep apnea.  Following multiple remands, the Board denied service connection for such in January 2017.
In a June 2018 Memorandum Decision, the Court of Appeals for Veterans Claims (Court) vacated the Board’s January 2017 decision, finding that the Board’s determination that a September 2015 VA medical examination was adequate was clearly erroneous.  The Court remanded the matter to the Board for further development and readjudication consistent with its decision.
In light of the Court’s decision, the appellant should be afforded an examination with a suitably qualified clinician to determine the nature and etiology of his diagnosed obstructive sleep apnea.  See also Stegall v. West, 11 Vet. App. 268 (1998).  
The Board notes that in an October 2018 letter, VA advised the appellant that he had 90 days to submit additional argument or evidence in support of his appeal.  The appellant submitted additional argument in October 2018 and requested that this matter be remanded to the Agency of Original Jurisdiction (AOJ) for review of such.  He waived the remainder of the 90-day period following the October 2018 letter.  The Board finds that this explicit waiver is voluntary, knowing, and intentional.  See Clark v. O’Rourke, 30 Vet. App. 92, 97-98 (2018).
The matter is REMANDED for the following action:
Schedule the appellant for an examination with a suitably qualified clinician to determine the nature and etiology of his sleep apnea.  Access to records in the appellant’s electronic claims file should be made available to the examiner for review in connection with his or her opinion. 
After examining the appellant and reviewing the claims file, the clinician is to provide opinions as to the following:
(a) Is at least as likely as not (i.e., a 50 percent or greater probability) that the appellant’s sleep apnea was incurred in or is otherwise causally related to his active service?
(b) If not, is it at least as likely as not that the appellant’s sleep apnea was caused by a service-connected disability, to include PTSD?
(c) If not, is it at least as likely as that the appellant’s sleep apnea has been aggravated (chronically worsened) by a service-connected, to include PTSD?  
If aggravation is found, please identify the baseline level of disability prior to aggravation, to the extent possible, based on the medical evidence and also any lay statements as to the severity of the condition over time. 
A complete explanation must be provided for any opinion offered.  In providing the requested opinion, the examiner should reference any relevant evidence of record, to include the appellant’s in-service reports of being easily fatigued and still feeling tired after sleeping.  Those reports of symptoms are contained in a December 2000 report of medical history and a  January 2004 post-deployment questionnaire.  

 
K. Conner
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	R. Behlen, Associate Counsel