Citation Nr: 21004902 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 16-42 585 DATE: January 28, 2021 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected right knee disability, is remanded. REASONS FOR REMAND The Veteran served active duty from July 1973 to July 1977 and from June 1987 to January 1992. This matter comes before the Board from a May 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. A hearing was held via video conference before the undersigned Veteran’s Law Judge (VLJ) in August 2019, a transcript of which has been associated with the record. The matter was remanded in a November 2019 Board decision for additional development and has now returned for further appellate review. The Veteran is seeking service connection for sleep apnea, which he contends is etiologically related to active duty service or is secondary to his service-connected right knee disability due to obesity. Pursuant to the November 2019 Board remand, the Veteran received a VA examination in January 2020. After review of the Veteran’s claims file, the examiner opined that “it is less likely than not the Veteran has a diagnosis of sleep apnea that was incurred in, was caused by, or is otherwise etiologically related to his military service, to include any period of active duty or ACDUTRA.” By way of rationale, the examiner stated that the Veteran’s STRs do not contain complaints of sleep apnea or related symptoms during service and that while there is a notation from December 1977 regarding a sleep study as part of a psychiatric assessment, “no other details from that study were present and there was no testing result or formal diagnosis of sleep apnea.” The examiner, however, failed to discuss and address the Veteran’s lay statements regarding difficulty staying awake during meetings, forgetfulness, difficulty concentrating, falling asleep during convoys, daytime sleepiness, waking up during the night, and loud snoring as illustrated in a May 2016 correspondence, as well as July 2015 lay statements from the Veteran’s wife and sister regarding loud snoring and falling asleep during daytime activities during the Veteran’s period of military service. Accordingly, the Board finds that remand is necessary to obtain a new VA examination regarding the nature and etiology of the Veteran’s claimed obstructive sleep apnea. The matters are REMANDED for the following action: Afford the Veteran a VA examination by an examiner with sufficient expertise, to determine the nature and etiology of his obstructive sleep apnea. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be performed. Following the examination and a review of the relevant records and lay statements, the examiner must state an opinion with respect to whether the Veteran’s obstructive sleep apnea at least as likely as not (50 percent probability or greater): (a) was incurred in, was caused by, or is otherwise etiologically related to his military service, to include any period of active duty or ACDUTRA. (b) was caused by his service-connected right knee disability; (c) was permanently worsened by his service-connected right knee disability. In providing the opinion, the examiner should specifically address the lay statements of record from May 2016 and July 2015 from the Veteran, the Veteran’s spouse, and the Veteran’s sister. The rationale for all opinions expressed should also be provided. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Gorum, 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.