Citation Nr: 21061844 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 15-13 718 DATE: October 5, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. REASONS FOR REMAND The Veteran had active service in the United States Navy from October 1981 to November 1984. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a central office Board hearing in January 2017; a transcript is of record. In July 2020, the Board denied entitlement to service connection for OSA. The Veteran appealed the Board's decision to the United States Court of Appeals for Veteran's Claims (Court). In June 2021, the Court vacated and remanded the above issue from the Board's July 2020 decision. Entitlement to service connection for OSA is remanded. The Court vacated and remanded the above issue in its June 2021 order. Specifically, the Court stated the Board did sufficiently address lay evidence from the Veteran's daughter from January 2017. The May 2019 examination did not address the daughter's statements. The Veteran has a diagnosis of OSA to include as reported in the May 2019 examination. As such, the first element of service connection is met. The Veteran testified at a Board hearing regarding his OSA. He explained that he had sleep problems in service, and that he has snored for a long period of time. The Veteran's significant other submitted a lay statement reporting the Veteran has breathing problems while sleeping. See 2/27/2017, Buddy/Lay Statement Significant Other. His daughter, a nurse, reported that she remembered him snoring loudly since she was a child. She explained the Veteran has had continuous symptoms since she was a child. See 2/27/2017, Buddy/Lay Statement Nurse. The Board finds the Veteran, his significant other, and daughter competent to describe their experiences with his sleep problems and that they began prior to his official diagnosis. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). However, while the Veteran's daughter, a nurse, is competent to recognize symptoms of sleep apnea, the Board finds that an additional opinion is needed to address her statements regarding the Veteran's significant sleep problems during her childhood. As such, the Board finds that an addendum or examination if necessary is warranted to address the Veteran's claim for service connection for OSA. This matter is REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. 2. After associating any treatment records with the claims file, obtain an addendum opinion or schedule an examination to determine the etiology of the Veteran's OSA. The claims file is to be made available to the examiner and reviewed in conjunction with the examination. --Then, address whether: (a.) It is at least as likely as not (probability of approximately 50 percent) that his disability was caused by a disease or injury in service. (b.) If no, is it at least as likely as not (probability of approximately 50 percent) that his OSA was either 1) proximately due to OR 2) aggravated by any service-connected disability? **The examiner must address the lay statements of record showing the Veteran's sleep problems/symptoms initially manifested prior to his official OSA diagnosis.** See 2/27/2017, Buddy/Lay Statement Significant Other; 2/27/2017, Buddy/Lay Statement Nurse. The term "aggravated" refers to a worsening of the underlying condition beyond the natural progression of the disease, as opposed to temporary or intermittent flare-ups or symptoms that resolve with return to the baseline level of disability. If aggravation is found, please state, to the extent possible, the baseline level of disability prior to aggravation. Inform the above examiner that a comprehensive rationale for all opinions must be provided. All pertinent evidence, including both lay and medical, should be considered. (Continued on the next page) If an opinion cannot be provided without resorting to speculation, the examiner must explain why this is so and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Morales, 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.