Citation Nr: 1809013 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 12-32 337 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for obstructive sleep apnea (OSA). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. A. Prinsen, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from May 1983 to October 1991 and from January 2003 to January 2004. This matter is before the Board of Veterans' Appeal (Board) on appeal from an April 2011 rating decision of the Louisville, Kentucky Regional Office (RO) of the Department of Veterans Affairs (VA). Jurisdiction was subsequently transferred to the RO in Roanoke, Virginia. In February 2017, the Board remanded this case for further development and consideration. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Board remanded the case in February 2017 to obtain a medical opinion as to the relationship between the Veteran's OSA and service. In response, a June 2017 opinion was obtained that found the Veteran's OSA to be more likely than not unrelated to his service. The June 2017 medical opinion is inadequate for several reasons. First, the examiner based this finding largely on the fact that the Veteran was not diagnosed with OSA until 2010, some six years after service. She also found it critical that there was "no evidence of continuity of care" since service. However, neither of these factors is fatal to the claim. To the contrary, continuity of care is not a requirement for service connection. Also, in service diagnosis of a condition is not a pre-requisite for service connection. Indeed, service connection can still be granted for a condition diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred during service. See 38 C.F.R. § 3.303(d) (2017). The nurse practitioner that provided the June 2017 medical opinion also stated that the Veteran did not have hypersomnolence and also noted that his snoring pre-dated service. This rationale, however, is based on a faulty factual premise. The Veteran has credibly indicated that his snoring did not start before service. He and his wife have pointed to approximately 1987 as the start of these symptoms. Such assertions are supported by treatment records dated in July 2011 which also note 1987 as the start of the Veteran's symptoms. Moreover, the treatment records form July 2011 also point to daytime sleepiness from 1987 to the present. These records are highly probative and were not properly taken into account by the nurse practitioner that provided the June 2017 medical opinion. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (finding an examination inadequate where the examiner did not comment on veteran's report of an in-service injury and relied on lack of evidence in service medical records to provide negative opinion). Because the June 2017 medical opinion is inadequate, the case must again be remanded to obtain another opinion. Accordingly, the case is REMANDED for the following action: 1. Obtain updated VA and/or private treatment records. If such records are unavailable, the Veteran's claims file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Obtain a medical opinion from an appropriately qualified clinician, other than the clinician who offered the June 2017 medical opinion, to assess the nature and etiology of the Veteran's OSA. The claims file must be made available to, and be reviewed by, the reviewing clinician. If the reviewing clinician determines that physical examination of the Veteran is needed to render the requested opinion, such should be accomplished. Based on a review of the record, and new examination if needed, the reviewing clinician is asked to address the following: Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's OSA had its onset in service or is otherwise related to service? In rendering this opinion, the reviewing clinician must accept as true the statements of the Veteran and his spouse to the effect that the Veteran's snoring, breathing difficulty during sleep, and daytime sleepiness began around approximately 1987 and has continued to the present time. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. The medical opinion provided must include a complete rationale for all opinions expressed. If the reviewing clinician feels that a requested opinion cannot be rendered without resorting to speculation, the reviewing clinician must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ DONNIE R. HACHEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).