Citation Nr: 21066945 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 15-02 083 DATE: November 2, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from November 1968 to November 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in February 2018. A transcript of the hearing is associated with the electronic claims file. In August 2020, the Board denied the service connection claim for sleep apnea which the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In July 2021, the Court issued an order that vacated the Board decision for sleep apnea and remanded the claim for compliance with a Joint Motion for Partial Remand (JMPR). Sleep Apnea In August 2020 the Board issued a decision denying the Veteran's sleep apnea. The Veteran appropriately appealed the claim, filing a CAVC motion in July 2021. In July 2020 CAVC issued a JMPR in which it found that the Board erred when it relied on an inadequate VA nexus opinion. The Court found that a remand was required for a new opinion in which the examiner must provide an adequate rationale and address the Veteran's contentions. Specifically, the Veteran reported in his February 2018 hearing testimony that he snored during service. See July 2021 CAVC Decision, p. 3, see also July 2021 Hearing Transcript In the present case, the Veteran has been diagnosed with obstructive sleep apnea. Sleep apnea is not a "chronic disease" under 38 C.F.R. § 3.309 (a) (2016); therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303 (b) do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The question is thus whether there is an in-service incurrence or aggravation of sleep apnea, and if so, whether there is a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167. A review of the record does not show any complaint, treatment, or diagnosis for sleep apnea or for trouble sleeping in service. Furthermore, in the Veteran's October 1970 report of medical examination, the Veteran stated that he was in good health. See March 2016 STR-Medical, p.38. However, the Veteran has asserted that he snored in service. In the present case, the Board finds that a remand is necessary for adjudication. McLendon v. Nicholson, 20 Vet. App. 79 (2006) sets a low bar to afford an examination for a claimed service-connected condition. Given that the Veteran is not competent to provide a nexus opinion and because the October 2019 VA examination did not include an adequate rationale, the Board finds that a remand is necessary. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any obstructive sleep apnea. The examiner must opine whether: (a.) Identify if the Veteran has a diagnosis of obstructive sleep apnea. (b.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's current sleep apnea onset during or is caused by an in-service injury or disease? Review of the entire claims file is required. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Attention is invited to treatment records noting sleep apnea. In addition, attention is invited to the VA examination in October 2019 and to the Veteran's February 2018 testimony that he snored in-service. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Long-Ellis, 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.