Citation Nr: 20004530 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 19-19 487 DATE: January 21, 2020 REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1967 to May 1971 and from December 1974 to May 1995. This matter is on appeal from a January 2019 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to service connection for obstructive sleep apnea is remanded. The Veteran contends that he is entitled to service connection for obstructive sleep apnea. However, the Board finds that additional development is necessary to determine the etiology of his condition and address his theory of secondary service connection. The Veteran was provided with a VA examination in December 2018 in which the examiner opined that the Veteran’s condition was less likely than not incurred in or caused by service. The examiner provided a rationale which stated that the Veteran demonstrated symptoms of sleep apnea in the military but never underwent the recommended testing necessary for a diagnosis and received an official diagnosis 25 years later. She also stated that “given the lack of chronicity of care, a[] nexus is not established.” However, the Board finds that this is not an adequate rationale. First, the Veteran’s service treatment records note more than symptoms of sleep apnea, as December 1986 service treatment records reflect that the Veteran was also provided with a provisional diagnosis of “R/O [rule out] obstructive sleep apnea” by a doctor while in service. Moreover, a lack of treatment or followup care following separation does not necessarily establish that the Veteran did not in fact experience continuity of symptoms after separation. See, e.g., Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (holding that “[w]hen assessing a claim, the Board may not consider the absence of evidence as substantive negative evidence.”). In providing an opinion, the examiner must consider the record as a whole, to include the Veteran’s October 2018 letter in which he stated that “the [sleep] problem … continued throughout [his] naval service and after [his] retirement from active duty.” The Board therefore finds that an additional opinion must be obtained. The Veteran has also raised an alternative theory of entitlement based on secondary service connection. In a November 2019 appellate brief, the Veteran’s representative argued that the Veteran’s “service-connected conditions require pain management with the use of muscle relaxers, which can cause and aggravate sleep apnea.” His representative also cited a 1995 article titled, “The effects of the GABA agonist, baclofen, on sleep and breathing.” The examiner is therefore asked to provide an opinion which addresses this theory of entitlement based on secondary service connection. The record also reflects the Veteran receives VA treatment; thus, updated VA treatment records should be associated with the claims file. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from October 2018 to the present. 2. After completing the development in item 1, schedule an examination with an appropriate clinician for the Veteran’s claim for service connection for obstructive sleep apnea. The reviewing clinician should be requested to provide an opinion (based on a review of the record) to answer the following: (a.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s obstructive sleep apnea was incurred in or is otherwise related to an in-service injury, event, or disease? (b.) If not, is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s obstructive sleep apnea is (1) proximately due to a service-connected disability, or (2) aggravated beyond its natural progression (i.e., any increase in the severity of the condition beyond its natural progression) by a service-connected disability? The examiner is asked to consider the record as a whole, to include the Veteran’s October 2018 letter and his July 2019 VA Form 9, Appeal to Board of Veterans’ Appeals. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination.   Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. H. White, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.