Citation Nr: 20022571 Decision Date: 04/01/20 Archive Date: 04/01/20 DOCKET NO. 17-34 205 DATE: April 1, 2020 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for lower back disability is granted. Entitlement to service connection for a bilateral knee disability is denied. Entitlement to service connection for migraines is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. The Veteran’s bilateral hearing loss did not originate in service or until many years thereafter, and is not otherwise etiologically related to service. 2. Resolving reasonable doubt in the Veteran’s favor, his lower back disorder is etiologically related to service. 3. The Veteran’s bilateral knee disability was not incurred in or caused by active service, and his bilateral knee disability is not otherwise etiologically related to active service. 4. The Veteran’s migraines were not present in service and is not otherwise related to service or service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for lower back disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for service connection for a bilateral knee disability are not met. 38 U.S.C. §§ 101, 1110, 1131, 5107(b); 38 C.F.R. § 3.303. 4. The criteria for service connection for migraines have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1987 to May 1991. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Establishing service connection generally requires (1) evidence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 281 F.3d 1163, 1167 (Fed. Cir. 2004). Once the evidence has been assembled, it is the Board’s responsibility to evaluate the evidence. 38 U.S.C. § 7104 (a). The Secretary shall consider all information and evidence of record in a case before the Board with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.102, 4.3. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for bilateral hearing loss The Veteran alleges that his bilateral hearing loss originated from service. The record in this case is clear as to whether the Veteran has a current disability for VA purposes. The May 2017 and February 2014 VA examinations diagnosed the Veteran with hearing loss for VA purposes. The Board also observes that the Veteran has reported that he was exposed to acoustic trauma in service as a result of his military occupational specialty (MOS). According to the Veteran’s DD 214, his MOS was a helicopter mechanic. In the May 2017 VA examination, the Veteran reported that he was an aviation metal smith and had a brief term in the police. The examiner explained that according to the Veteran’s MOS, it was highly probable that he had hazardous noise exposure in service. In a November 2013 VA treatment record, the examiner reported that the Veteran had both military and civilian noise exposure where both included the use of firearms with intermittent hearing protection. Moreover, his work as an aircraft mechanic also had intermittent hearing protection. As such, the Board finds that the Veteran had hazardous noise exposure during service, which satisfies the in-service injury or occurrence. However, even though the Veteran has a current disability and there was in-service occurrence of acoustic trauma, there is no nexus that would link the current disability to his time in service. Thus, based upon a review of the record, the Board finds that service connection for bilateral hearing loss is not warranted in this case because the evidence does not show a causal relationship between the claimed in-service disease or injury and the current disability. In making this finding, the Board notes the Veteran’s service treatment records (STRs) are negative for any complaints, treatment for, or diagnosis of hearing loss during service. There is no indication of any hearing impairment in either the Veteran’s entrance or separation examinations. The Board notes that the Veteran submitted lay statements reporting that his hearing loss was caused by his time in service. In the February 2014 VA examination, the Veteran reported that due to his hearing loss he has to have people repeat themselves, which is really difficult when there is a lot of cross talking or background noise. The examiner opined that the Veteran’s current hearing loss is less likely than not related to military noise exposure since induction and separation examination reveal hearing within normal limits. The examiner further explained that service records do not show findings or a diagnosis of hearing loss and nothing was indicated on separation. Then in the May 2017 VA examination, the Veteran reported that he had difficulty hearing in groups and with is background noise. The examiner opined that it was less likely that the Veteran’s hearing loss was caused by service since hearing thresholds at entrance and discharge document normal thresholds. The examiner further explained that while the evaluation shows that there is a high frequency hearing loss, the Veteran’s limited noise exposure while serving in the police, and his wearing ear protection while serving as an aviation sheet metal worker is not consistent with hearing loss caused by military service. The Board notes that the Veteran is clearly competent to report observable symptomatology, i.e. hearing impairment. In that regard, the Board notes that the lay statements regarding onset and continuity of symptomatology are not supported by the evidence of record. The Veteran’s STRs contain no complaints, symptoms, treatment, or diagnosis of bilateral hearing loss The Veteran’s separation examination includes an audiological examination claiming that the Veteran had normal hearing. There are no post-service medical treatment records until VA treatment records starting from July 2013—about 22 years after the Veteran’s separation from service. The absence of post-service findings, diagnoses, or treatment for hearing loss decades after service is one factor that tends to weigh against a finding of continuous symptoms after separation. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor to consider as evidence against a claim of service connection). Additionally, the Board accords significant probative weight to the February 2014 and May 2017 VA examinations. The record reflects the examiners reviewed the Veteran’s pertinent medical history, documented his current complaints, and rendered findings and diagnoses consistent with the remainder of the evidence of record, and therefore, the examination is adequate for adjudication purposes. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Based on the evidence, and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for bilateral hearing loss, and thus, the benefit-of-the-doubt doctrine is not helpful to the Veteran. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to service connection for lower back disability The Veteran claims that his lower back disability was caused by service. Specifically, he reports that he injured his back during service and that he has not had any other back injuries since then. He specifically points out that he received a military medical separation for his low back disability and has experienced back pain since. The Veteran’s STRs indicate complaints of recurrent lower back pain. In the July 1986 entrance report of medical examination, there was no notation of low back pain. In February 1989, the Veteran was diagnosed with mechanical lower back pain and muscle tension. He complained that he had pain in the back of his neck and lower back for about the past two weeks. In another February 1989 note, the Veteran reported that he got low back pain while he walked to work. He explained that he has had similar problems for the past several years where he develops low back pain and then a headache follows. Generally, the symptoms resolve at the end of the day when he rests. He explained that he wrestled in high school and was in a motorcycle accident, but claims that he had no serious back injuries, just some strains. In April 1989, the Veteran was seen at a physical therapy clinic where he was reporting paraspinal pain. He was diagnosed with chronic unresolving lower back pain. In a July 1990 orthopedic note, the Veteran reported lower back pain for the past three years. He was diagnosed with mechanical lower back pain. In November 1990, the Medical Board Report diagnosed the Veteran with mechanical low back pain. In an August 1991 physical therapy note, the Veteran was diagnosed with lower back pain even after a year of physical therapy. The Veteran was later discharged due to his lower back pain. Post-service treatment records indicate that the Veteran has had low back pain since leaving service. In July 2013, the Veteran reported that he had low back pain since leaving the Marines and that he is not aware of any injury. The pain is in the central low back and he has some radiation of pain to both legs. He explains that it has gotten worse solely over the years. Since then, he has consistently reported of low back pain and has consistently alleged that it has persisted since service. In the February 2014 VA examination, the Veteran reported that he injured his back in paint shop while bending over. He denied any other back injuries and reported that he currently notes painful stiff back that gets worse over time. The examiner noted that the STRs document low back pain since 1983 with three major episodes attributed to wrestling, but then also mentions that the STRs note onset of back pain after walking. The examiner also reported that the STRs document acute lumbar strain and that the back condition is not an identified chronic condition. The examiner also indicated that the Veteran did not have degenerative joint disease in service and that it was documented in the STRs that the Veteran had a motorcycle accident before service. Upon examination, the Veteran was diagnosed with degenerative arthritis of the spine with a diagnosis date of 2013 and acute lumbar strain with an unspecified diagnosis date. The examiner opined that it was less likely than not that the Veteran’s current degenerative joint disease of the lumbar spine incurred in or was caused by the in service injury since there was no such diagnosis identified in the STRs and the events described by the Veteran would not result in this disability. The examiner also opined that it was less likely as not that the Veteran’s chronic lumbar strain was incurred in or caused by in service injury since the STRs do not support the assertion that a chronic lumbar strain had its onset or origins in service. In the May 2017 VA examination, the Veteran was diagnosed with a lumbosacral strain with a diagnosis date of the mid-1990s. The Veteran reported that the onset of the symptoms of his lumbar spine disability was in 1991. He explained that it began gradually from wear and tear where he worked at the “strip tanks” and did a lot of lifting and bending over. His back pain got worse and even did physically therapy. He was ultimately medically discharged for his back. The examiner opined that it was less likely than not that the Veteran’s lower back pain incurred in or was caused by the mechanical back pain during service because of the history of multiple back injuries in high school due to wrestling and the motorcycle accident prior to enlistment. The RO in the February 2014 rating decision and the June 2017 Statement of the Case, claimed that the Veteran was not entitled to service connection for lower back pain because his low back condition existed prior to service due to medical notes in the Veteran’s STRs that reported that he had a history of multiple back injuries in high school due to wrestling and had a motorcycle accident prior to enlistment. A clinical note in July 1990 reported low back pain for three years which the RO claimed indicated that the Veteran was having intermittent and recurrent low back pain prior to enlistment that continued into service. The RO also explained that the medical evidence of record does not show that the Veteran’s lumbar spine condition was permanently aggravated by service. During the January 2020 Board hearing, the Veteran testifies that the RO incorrectly applied the presumption of soundness with this issue. He points out that there is no notation that the Veteran had a back injury upon enlistment. He further explained that he served a couple of years without having any back troubles until he did start having the back pain. From then on, he sought regular treatment as documented in the STRs. The Veteran emphasized that there was no injury, no diagnosed condition, or any problem noted upon entrance into service regarding the Veteran’s low back. He further specified that the back pain started two years into service and that it became chronic and continuous. He explained that he never had any problems with his back before service. The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff’d 749 F.3d 1370 (Fed. Cir. 2014). In this case, there is a question as to whether the Veteran’s low back pain preexisted his military service from July 1987 to May 1991. In the Veteran’s STRs there is notation that the Veteran had multiple back injuries when he was wrestling in high school and that he was in a motorcycle accident prior to service. The Veteran’s July 1986 entrance examination is absent of any notations of defects, infirmities, or disorders. Additionally, the evidence is at least in equipoise as to whether the low back pain manifested during service. There are multiple notations through the Veteran’s time in service that he suffered from chronic low back pain. He went to physical therapy to treat it, but that did nothing. He was ultimately medically discharged due to his low back disability. Therefore, with respect to the Veteran’s low back disability, the presumption of soundness attaches. 38 C.F.R. § 3.304(b). Because the presumption of soundness attaches with respect to this disability, there must be clear and unmistakable evidence that the disorder both pre-existed service and was not aggravated in service. Id; see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306(b). Clear and unmistakable evidence means that the evidence “‘cannot be misinterpreted and misunderstood, i.e., it is undebatable.’” Quirin v. Shinski, 22 Vet. App. 390, 396 (2009). There is no evidence that clearly and unmistakably shows that the Veteran’s back disability pre-existed service. The few times that the Veteran reported that he had back injuries due to wrestling in high school and had a motorcycle accident prior to service, there was no actual medical evidence that indicated that the Veteran had these back injuries prior to service. The clinicians were relying on the Veteran’s statements when they noted those two instances of back injuries prior to service. Additionally, there is no medical evidence opining that those back injuries due to wrestling and the motorcycle clearly and unmistakably existed prior to service. The most competent and credible evidence of record illustrates that the Veteran’s low back disability did not clearly and unmistakably preexist service. Therefore, the presumption of soundness has not been rebutted. When VA fails to carry its burden as to either preexistence or lack of aggravation, whether and to what extent the Veteran is entitled to compensation for the injury would be determined upon the assumption that the injury was incurred during service. It does not necessarily follow, however, that an unrebutted presumption of soundness will lead to service connection for the disease or injury. The Veteran must still demonstrate a current disability and a nexus between the current disability and the injury or disease in service. Horn v. Shinseki, 25 Vet. App. 231, 233 (2012). After evaluating the probative value of the evidence both for and against the claim, the Board is ultimately unable to assign greater probative value to either set of evidence. The Board highlights that even though the VA examiners claim that it is less likely that the Veteran’s current disability was related to the Veteran’s back injuries in service, the examiners rely on the Veteran’s lay statements that he had back injuries prior to service to opine that it is less likely that his current back disability occurred in service since he said that he had injuries before. Because the entrance examination did not note any back disability or injury, the presumption of soundness attached and there is no clear and unmistakable evidence to disprove that the Veteran was sound upon entrance of service. Additionally, the Veteran has reported that he has consistently been experiencing low back pain since he left service and it is clear that the Veteran was medically discharged due to this back pain. In light of evidence both for and against the claim, the evidence in this case is at least in equipoise. Thus, resolving reasonable doubt in the Veteran’s favor, service connection for lower back pain is warranted. 3. Entitlement to service connection for a bilateral knee disability The Veteran asserts that his bilateral knee disability began in service. Specifically, he claims that he started having trouble with his knees about four to five years into service. He dislocated his patella tendons on both knees and started having some laxity or instability with his knees. He explained that he injured his knees during physical training and was seen multiple times for it. He explains that he even went to physical therapy for his knees. He claims that he has had a chronic knee problem ever since then. The Veteran’s entrance and separation examinations are silent for any right or left knee complaints or findings. There were a couple of instances of knee pain in the Veteran’s STRs. In August 1987, he reported his knees giving away and in December 1987 he was diagnosed with bilateral knee instability with possible patellar dislocation. In February 1988, he reported right knee pain for five years and was diagnosed with right quad muscle strain. Post-service treatment records reflect complaints of pain and instability in both knees. In July 2013, the Veteran was diagnosed with tiny suprapatellar effusions, possible Osgood-Schlatter disease, and minimal degenerative changes. He was provided an X-ray due to his knee instability. And since then he has reported a history of chronic knee pain. In the February 2014 VA examination, the Veteran reported that the onset of his bilateral knee pain was in 1988 when he was injured during physical training. He explained that ever since then he has had knee pain and swelling. The examiner opined that the Veteran’s bilateral knee condition was less likely as not incurred in or caused by service since the STRs do not support the assertion that degenerative joint disease had its onset in service. Then in the May 2017 VA examination, the Veteran reported that the date of onset of the symptoms was in 1987. He explained that his knee disability began when he did a lot of physical training. There was an incident where he stepped into a hole and injured both his knees by hyperextending them. He furthered that he went to sick bay, was given a brace, and was given medicine. His X-rays were normal, and he never did any physical therapy in the military. He further explained that it eventually got better. He also explained that he did not do much for his knees after leaving the military and that the disability has worsened. The examiner opined that his bilateral knee disability was less likely than not incurred from this knee problems during service based on his STRs that contained only one clinical note in December 1987 of bilateral knee problems. There was no recurrent throughout the rest of his military service, suggesting the current bilateral knee disability is not chronic relating to service. The Board finds that the Veteran’s current bilateral knee disability is not etiologically related to his military service. Although STRs note an instance where the Veteran was diagnosed with bilateral knee instability, there was no further treatment in service or any disability noted upon his separation from service. Nor is there any no evidence that a bilateral knee disorder manifested to a compensable degree within one year of separation. Although the Board acknowledges that the Veteran reported an injury in service, there is no documentation in his STRs regarding any knee injury, nor is there any indication in his separation examination that he had knee problems. The Board finds that the probative value of the medical records outweighs the Veteran’s later recollections regarding treatment for his bilateral knees during service, and that his recollections lack credibility in this regard. Thus, the earliest competent and credible evidence indicating the presence of any knee disability is many years after the Veteran’s separation from service. The Board notes that, although not a dispositive factor, the passage of time between the Veteran’s discharge and an initial diagnosis for the claimed disorder is one factor that weighs against the Veteran’s claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Moreover, the record does not contain any medical opinion indicating that the Veteran’s bilateral knee disability was incurred in or otherwise related to active service. The Board notes that while the Veteran is competent to report observable symptoms, he is not shown to possess the medical training necessary to establish a current disability or render competent opinions about the etiology of a disability. Under the facts of this case, given the largely silent STRs, the absence of any credible evidence of knee problems until many years after service, and the multiple potential etiologic factors that accompany such a long period following service, the Board finds that the matter of determining the etiology of the knee disorders is more suitable to medical rather than lay expertise. Based on the foregoing, the Board finds that the preponderance of the evidence is against a grant of service connection for bilateral knee disability. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable, and service connection must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 4. Entitlement to service connection for migraines The Veteran asserts that his migraines had their onset in service. The Veteran’s STRs mention headaches a couple of times. In February 1989, the Veteran complained of tension headaches along with his back pain. In March 1989, he complained of a slight headache. There was nothing since then to indicate that the Veteran had chronic migraines during service. Post-service treatment records show that the Veteran has been experiencing migraines at least since July 2013. In the February 2014 VA examination, the Veteran was diagnosed with migraines starting in 1989 and tension headaches in the late 1980s. The Veteran reported that the onset of his headaches was while he was in service. He reported severe headaches and light and sound sensitivity. He recently started migraine medication that cause nausea. The Veteran reported that he noted significant migraine headaches about eight times in the past year. These headaches lasted all day and were incapacitating. He also reported that he got two tension headaches per month. They were mild and the typical duration was between two to four hours. The Veteran reported that he experienced symptoms of nausea, sensitivity to light and sound. The examiner opined that it was less likely as not that migraine headaches were incurred in or caused by service since the STRs do not support that the migraines had its onset in service. In the May 2017 VA examination, the Veteran reported that he has had migraines since the mid-1990s and tension headaches since 2015. He reported that the condition began with migraines and that he still gets them, but now he gets constant headaches daily. He gets migraines one to two times a month and takes medicine for it. For his constant daily headaches, he takes pain medications that he uses for his back. He explained that the constant headaches started in 2015 and that they come from his neck pain. The Veteran experiences sensitivity to light. The examiner opined that the Veteran’s migraines were less likely than not incurred in or caused by service since his STRs only contain two clinical notes regarding headaches. The examiner further explained that there was no further recurrence of headaches for the rest of his military service and he has only recently been experiencing headaches which suggest that his current headaches are not related to service. During the January 2020 Board hearing, the Veteran testified that he never suffered from migraines before service and that it was about the same time he started getting fatigued that his migraines started. He claims that the migraines he had back in service are the same ones he suffers from now. As described, the record contains no diagnosis of a chronic headache disorder either in service or within one year after service, which would preclude service connection on the basis of continuity of symptomology or on any presumptive basis. There is also no medical evidence even suggesting the possibility of a link between the Veteran’s current complaints of headaches and his active service. See Shedden, 381 F.3d 1163, 1167. The Board finds that the Veteran’s current migraines are not etiologically related to his military service. Although STRs note two instances where the Veteran complained of headaches, there was no further treatment in service nor was there any disability noted upon his separation from service. Nor is there any evidence that migraines manifested to a compensable degree within one year of separation. Although the Board acknowledges that the Veteran reported headaches in service, there is no documentation that these headaches were chronic. The Board finds that the probative value of the medical records outweigh the Veteran’s later recollections regarding treatment for his headaches during service, and that his recollections lack credibility in this regard. Thus, the earliest competent and credible evidence indicating the presence of any headache or migraine disability is many years after the Veteran’s separation from service. The Board notes that, although not a dispositive factor, the passage of time between the Veteran’s discharge and an initial diagnosis for the claimed disorder is one factor that weighs against the Veteran’s claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Moreover, the record does not contain any medical opinion indicating that the Veteran’s headaches or migraines were incurred in or otherwise related to active service. The Board notes that while the Veteran is competent to report observable symptoms, he is not shown to possess the medical training necessary to establish a current disability or render competent opinions about the etiology of a disability. Under the facts of this case, given the largely silent STRs, the absence of any credible evidence of headaches until many years after service, and the multiple potential etiologic factors that accompany such a long period following service, the Board finds that the matter of determining the etiology of his migraines are more suitable to medical rather than lay expertise. Based on the foregoing, the Board finds that the preponderance of the evidence is against a grant of service connection for migraines. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable, and service connection must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea is remanded. The Veteran asserts that his sleep apnea had its onset in service and that he has had it ever since. He further explained that his STRs show that he had complaints of fainting spells and headaches and that he informed the doctors that he was an extremely light sleeper. He requests VA to review the cause of his sleep apnea, to include as secondary to his headaches and back disability, since he does not have the normal risk factors for sleep apnea. Additionally, in the January 2020 Board hearing the Veteran testified that while there was no diagnosis of sleep apnea in service, he had symptoms like headaches, dizziness, fainting spells and chronic fatigue. He further explained that pretty quickly into service he became a light sleeper, was easily woken, and could not get into a deep sleep. He explained that around the same time his headaches started they were exacerbated by the lack of sleep. He did not have sleeping problems before service. He remembers that during service people would complain that he snored a lot, but never that he sounded like he had stopped breathing, was choking, or gasping for air while he was asleep in service. He further testified that he was initially diagnosed with sleep apnea through a private physician, but now gets his CPAP machine from VA. There is evidence that the Veteran is diagnosed with sleep apnea. The Veteran has not been afforded a VA examination to determine the etiology of his sleep apnea. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). On remand, an examination should be performed. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the etiology of his sleep apnea. The examiner should elicit a full history from the Veteran. Any medically indicated tests should be conducted. The examiner should provide opinions that respond to the following: (a.) The examiner should provide an opinion as to whether it is at least as likely as not (defined as a 50 percent probability or greater) that his sleep apnea had its clinical onset during active service or is related to any incident or injury in service. (b.) A supporting rationale for the opinion expressed must be provided. If the examiner is unable to provide any opinion as requested, the examiner should fully explain the reason why such opinion could not be rendered. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Imam, 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.