Citation Nr: 21067019 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 16-11 284A DATE: November 3, 2021 REMANDED Service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1987 to January 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in September 2018 and May 2021, at which time they were remanded for further development of the record. Service connection for sleep apnea is remanded. In accordance with the May 2021 Board remand instructions, an August 2021 disability benefits questionnaire (DBQ) was conducted during which the conducting physician opined that it was less likely than not that the Veteran's sleep apnea was causally related to service. As a rationale, the physician explained that there were no reports for, or a diagnosis of, sleep apnea during service. The physician also opined that it was less likely than not that the Veteran's sleep apnea was causally related to his service-connected migraines or major depressive disorder. As a rationale, the physician explained that there is no causal nexus between migraines or major depressive disorder and sleep apnea per literature review. The physician cited a medical treatise in support of their opinion. The Board finds that the opinion and rationale are inadequate. The rationale seems to be primarily based on the lack of sleep apnea shown in service. However, a claimant may establish service connection for a disability even when the initial documentation of the disability after service- as long as the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303 (d); see also Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (an opinion is inadequate where examiner relies solely on absence of in-service treatment.) Furthermore, the physician did not address the January 1988 in-service treatment record which reflects that the Veteran was having difficulty sleeping and would wake up every thirty minutes. Because this opinion is inadequate, remand is required for an additional VA examination. See Barr v. Nicholson, 21 Vet. App. 303, 311. The matters are REMANDED for the following action: 1. Schedule an appropriate VA examination to determine the nature and etiology of the Veteran's sleep apnea. The relevant documents in the claims file should be made available to the VA examiner. Any testing deemed appropriate to provide the opinion should be conducted. 2. The VA examiner is requested to offer an opinion as to the following: Whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the claimed sleep apnea was incurred in or the result of the Veteran's active service? The examiner must address the January 1988 in-service treatment record which reflects that the Veteran was having difficulty sleeping and would wake up every thirty minutes. The examiner should also presume that the Veteran is competent to report that he has experienced sleep problems since service. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but that the medical evidence for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation or permanent worsening as it is to find against causation or permanent worsening. All opinions are to be accompanied by a rationale that is consistent with the evidence of record. A discussion of the pertinent evidence, to include the Veteran's statements, any relevant medical treatises, and generally accepted medical principles, is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alexander Bahus 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.