Citation Nr: 21062001 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 17-61 269 DATE: October 6, 2021 REMANDED Service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from November 1973 to January 1975 and from August 1990 to June 1991, to include service in Southwest Asia (SWA) from September 9, 1990 to May 17, 1991. In October 2019, the Veteran testified at a hearing at the regional office (RO) before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. In June 2020, the Board, in part, denied entitlement to service connection for sleep apnea. The Veteran appealed the denial of the claim for service connection for sleep apnea to the United States Court of Appeals for Veterans Claims (Court). The Court remanded the matter for action pursuant to the parties' agreement in the May 2021 Joint Motion for Partial Remand (JMPR). The case has now returned to the Board for further appellate review. By a September 2020 rating action, the RO granted service connection for PTSD, which represents a complete grant of his appeal in regard to this claim. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). This issue is no longer before the Board. In the May 2021 JMPR, the parties argued that in denying the claim for service connection for sleep apnea, the Board erred when it failed to ensure that the Department of Veterans Affairs (VA) had complied with its duty to assist under the requirements of 38 U.S.C. § 5103A and 38 C.F.R. § 3.159 (c) in obtaining an adequate medical opinion that addressed whether the Veteran's complaints of increased snoring and reports of gasping of air since service, as reported by his spouse during his hearing, were diagnostic of sleep apnea that might have had its onset in service. See JMPR at pages (pgs.) 3-5)). With attention to the directives of the May 2021 JMPR, the Board finds that the Veteran's and spouse's testimony indicating increased snoring and gasping for air since service snoring suggests potential symptomatology of sleep apnea during service. Accordingly, the Board shall remand this issue for development of a medical nexus opinion to inform appellate review. The matters are REMANDED for the following action: Obtain a medical opinion as to the etiology of the Veteran's sleep apnea. The examiner is asked to answer the following questions: a) Is it at least as likely as not (meaning probability of 50 percent or greater) that the Veteran's sleep apnea had onset in service, or otherwise is etiologically related to his service? Why or why not? In addressing the question, the examiner is requested to address the Veteran's contention that he had sleep issues after he had returned from Saudi Arabia, and that in 1995, he had informed his VA doctor of his symptoms but that he was not afforded a VA sleep study, as reported on his VA Form 9, Substantive Appeal, dated in November 2017. The examiner must also comment on the Veteran's reports of increased snoring and having to gasp for air (as indicated by the Veteran's spouse) since service, as reported during an October 2019 hearing before the undersigned. The examiner should review the Joint motion for remand (5/5/21 "CAVC Decision") for an explanation of the evidence that should be considered in providing the requested opinion. b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea was caused by his service connected PTSD? Why or why not? c) Is it at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea was aggravated (made worse) by his service connected PTSD? Why or why not? MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Carole Kammel, 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.