Citation Nr: 21066379 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 18-07 105 DATE: October 29, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from August 2004 to August 2008. This matter comes before the Board of Veterans' Appeal from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). A virtual hearing was conducted by the undersigned Veterans Law Judge in January 2021 and a hearing transcript has been associated with the record. Entitlement to service connection for obstructive sleep apnea is remanded. The Veteran contends that his obstructive sleep apnea had its onset during or was the result of his active service and should be afforded a VA examination to determine the etiology of the condition. See Hearing Transcript (pg. 4). During his hearing, the Veteran mentioned possible theories for his obstructive sleep apnea to include exposure to burn pits in Iraq, and a head trauma. See Hearing Transcript (pg. 5,7). In the May 2021 Board remand, the Board directed the RO to provide an etiology opinion. Specifically, the Board directed the VA examiner to provide an etiology opinion that considered the Veteran's in-service exposure to burn pits as well as his head injuries. The Veteran was afforded an examination in August 2021 where the examiner gave an opinion that only analyzed the Veteran's prior head injury as it relates to his current obstructive sleep apnea but provided no opinion as it relates to exposure to burn pits. Furthermore, the examiner stated that there were "no subsequent record on any complaints of having sleep disorders reported due to the head injury." However, it was reported on his September 2008 Traumatic Brain Injury (TBI) evaluation that the Veteran had some difficulties falling asleep. In addition, during his August 2008 post-deployment screening, it was noted that the Veteran had trouble staying asleep, which is the same month he separated from service. Thus, the examiner's opinion is based on an incorrect factual premise and is considered inadequate. Reonal v. Brown, 5 Vet. App. 458, 461 (1993); see also D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). In addition, the Veteran provided statements from his wife and former roommate in service as to his obstructive sleeping patterns. All of which were not considered in the examiner's opinion. Thus, the Board finds that there has not been substantial compliance with the Board's previous remand directives. Another remand is required to obtain an adequate etiology opinion. Stegall v. West, 11 Vet. App. 268, 271 (1998); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matter is REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, schedule the Veteran for a VA examination to determine the nature and etiology of his claimed obstructive sleep apnea. A complete copy of the claims file must be made available to the examiner. The examiner should take a thorough history from the Veteran of observable symptomatology. The need for further in-person examination is left to the discretion of the examiner. After a thorough review of the medical and lay evidence of record, the examiner should opine as to the following: Is it at least as likely as not (50 percent probability or more) that the Veteran's diagnosed obstructive sleep apnea is related to an in-service injury, event, or disease to include exposure to burn pits and head injuries? The examiner should indicate whether the obstructive sleep apnea at least as likely as not (i) began during active service, (ii) manifested within one year after discharge from service, or (iii) were noted during service with continuity symptomatology since service. The examiner should address the August 2008 post-deployment screening where it was noted that the Veteran had trouble staying asleep. The examiner should also address the Veteran's wife and roommate's statements. Ensure that any medical opinion obtained includes a complete rationale for the conclusions reached. Any medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; any medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). (Continued on the next page) The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Adeyemi, 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.