Citation Nr: 21064847 Decision Date: 11/02/21 Archive Date: 10/21/21 DOCKET NO. 18-55 310A DATE: November 2, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1993 to May 1997. This matter comes before the Board of Veterans' Appeals (Board) from an October 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board hearing in May 2021. A transcript of the hearing is of record. Entitlement to service connection for obstructive sleep apnea is remanded. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service or for aggravation of a preexisting injury suffered or disease contracted in line of duty. 38 U.S.C. §§ 1110 (wartime), 1131 (peacetime). In general, to establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). The Veteran originally filed a claim for entitlement for direct service connection for "sleep disturbances" in June 2012, and submitted results of a VA sleep study accomplished in October 2012 that showed a diagnosis of obstructive sleep apnea. An October 2013 rating decision denied that claim, noting there was no evidence in service of any sleep apnea or related problems. A current disability has thus been shown, and furthermore, three buddies who served with the Veteran and witnessed the Veteran's sleep apnea symptoms during active service provided written statements noting that fact. However, the Board finds that remand is necessary because the Veteran has not received a VA medical examination for his claimed sleep apnea disability, and as such, will remand for that. In McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006), the Court held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. VA's duty to assist requires it to provide a medical examination or obtain a medical opinion if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but "(A) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (B) establishes that the Veteran suffered an event, injury or disease in service, or has a disease or symptoms of a disease listed in § 3.309, § 3.313, § 3.316, and § 3.317 manifesting during an applicable presumptive period provided the claimant has the required service or triggering event to qualify for that presumption; and (C) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service- connected disability." 38 C.F.R. § 3.159(c)(4)(i); Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003). VA must provide an examination that is adequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). If VA undertakes to provide an examination, even if not required to do so, the examination must be adequate, or the Veteran informed as why one cannot or will not be provided. Daves v. Nicholson, 21 Vet. App. 46, 52 (2007). A medical examiner must provide a "reasoned medical explanation connecting" his observations and conclusions. NievesRodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("It is the factually accurate, fully articulated, sound reasoning for the conclusion... that contributes probative value to a medical opinion."). The matters are REMANDED for the following action: 1. Obtain any pertinent outstanding VA treatment records and associate them with claims file. Contact the Veteran and request that he identify any pertinent private treatment records not already identified and obtained and, with the appropriate authorization, attempt to obtain those records and associate them with the claims file. All actions to obtain the records should be documented. If the records cannot be located or do not exist, the Veteran should be notified and given opportunity to provide them. 2. After the record search is complete, and any new records are added to the claims file, obtain a new VA examination and opinion from an appropriate and qualified VA physician with expertise in sleep issues to address the nature and etiology of the Veteran's obstructive sleep apnea disability. The claims file must be made available to and reviewed by the examiner. A note that it was reviewed should be included in the report. Based on the review of the Veteran's entire record, the examiner should provide an opinion as to the following: Whether it is at least as likely as not (probability of fifty percent or greater) that the Veteran's claimed obstructive sleep apnea disability had its onset in service or are otherwise related any to any in-service disease, event, or injury? The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. The examiner is also asked to consider any additional evidence submitted by the Veteran in the claims file, to include the buddy statements stating they observed the Veteran's sleep apnea symptoms during active service. If the examiner rejects the Veteran's reports of continuity of symptomatology, a reason for doing so must be provided. A detailed rationale supporting the examiner's opinion should be provided. In forming the opinion, the examiner must consider all lay statements of record. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required or the examiner does not have the needed knowledge or training). Jones v Shinseki, 23 Vet. App. 382 (2010). 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. 3. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Setter, 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.