Citation Nr: 21002878 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 18-05 084 DATE: January 19, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1976 to August 1979 and from January 1980 to July 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2020 the Veteran had a Board hearing before the undersigned Veterans Law Judge. The claim was previously remanded in April 2020 for additional development. It has since been returned to the Board for further appellate consideration. 1. Entitlement to service connection for obstructive sleep apnea is remanded. Remand is required for an adequate VA opinion. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical opinion based upon an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). A VA examiner rendered a June 2020 VA opinion. The examiner opined the sleep apnea was less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner explained that there was no diagnosis of obstructive sleep apnea in the Veteran’s service treatment records (STRs). The examiner acknowledged the reviewing the lay statements and testimony of record. Specifically, the examiner noted the Veteran’s wife stated, “they have been married for years and he had sleep issues including snoring at night for many years while married.” The examiner explained while snoring may be listed as one of the common symptoms associated with sleep apnea, the presence of snoring alone does not constitute a diagnosis of sleep apna. However, at the March 2020 Board hearing Veteran and his wife provided testimony that he not only snores, but he has also stopped breathing while sleeping for around thirty years. Further, the Veteran’s wife provided a lay statement listing more than just sleeping. She stated the symptoms include, snoring and pauses and stopped breathing in his sleep. Additionally, she also stated the Veteran complains of being fatigued and tired. Additionally, the examiner noted the Veteran was seen at the Richmond VAMC on February 5, 2004 at which time no symptoms were reported on exam findings noted related to the claimed condition of sleep apnea. However, the cited VA treatment record was an ER visit for a prescription refill because the Veteran was going overseas the following week. The VA clinician noted the Veteran refused to be evaluated. Therefore, there was no medical information within the treatment record upon which the June 2020 examiner could rely on when rendering an opinion. Thus, the examiner used inaccurate evidence to support the negative nexus opinion. Accordingly, remand is required for an adequate opinion. The matters are REMANDED for the following action: Obtain an addendum opinion regarding the etiology of the sleep apnea from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the sleep apnea had onset in, or is otherwise related to, active service. The examiner must address the following: 1) the March 2020 hearing transcript in which the Veteran reported in-service sleeping symptoms and difficulty breathing; 2) the March 2020 hearing transcript in which the Veteran’s wife reported that the Veteran not only snores, but he has also stopped breathing while sleeping for around thirty years; and 3) the March 2014 lay statement from the Veteran’s wife, submitted in April 2015; K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Braxton, 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.