Citation Nr: 21068524 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 11-28 788 DATE: November 10, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1977 to June 1980, with additional service in the National Guard from October 1982 to October 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and his wife testified before the undersigned Veterans Law Judge (VLJ) at an October 2016 videoconference hearing. A transcript of the hearing has been associated with the record. In January 2017 and November 2017, the matter was remanded for additional development. In August 2019, the Board issued a decision that denied service connection for OSA. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans' Claims (Court). In October 2020, the Court granted a Joint Motion for Remand (JMR), vacating the Board's August 2019 decision that denied the claim on appeal, and remanded the case to the Board for action consistent with the terms of the JMR. Entitlement to service connection for OSA is remanded. In the October 2020 JMR, the Court determined that the August 2019 Board decision erred in relying on an inadequate VA opinion that did not comply with its previous remand order. Specifically, the Court found the January 2018 examination, as requested in previous Board remand directives, did not discuss the Veteran's active periods of National Guard service, the statements from the Veteran and others in support of the claim, and did not consider the February 2010 private medical opinion. See October 2020 CAVC Decision. The Board finds a remand is warranted to obtain a VA examination that complies with previous Board remand directives. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a Court or Board remand confers upon the appellant the right to compliance with that order). The Board notes that a detailed review of the record shows that the Veteran has provided inconsistent statements as to the onset of his diagnosed sleep apnea. Specifically, in September 2021 statements, the Veteran and his brother indicated his symptoms began during active duty between 1977 to 1980. In the October 2016 Board hearing, the Veteran indicated symptoms since the 1970's. However, prior reports indicated the symptoms had their onset during his service in the National Guard, with periods of ACDUTRA and INACDUTRA from 1982 to October 2003. During the August 2011 DRO hearing testimony, the Veteran indicated he first started having problems with his sleep apnea approximately in 1986. In a February 2010 private opinion, Dr. Williams, who stated that she had treated the Veteran since 2009, noted the Veteran's reports that his symptoms of daytime hypersomnolence and snoring began in 1995. See March 2017 Medical Treatment Record Non-Government Facility. The Board acknowledges that in September 2021, a medical etiological opinion was submitted in support of the claim. See September 2021 Medical Treatment Record Non-Government Facility. The examiner opined that it is at least as likely as not that the Veteran's OSA developed during his active duty service. However, the Board notes that the examiner based the opinion on the Veteran's self-reports which as described above have been inconsistent. The Board finds records created contemporaneous in time more probative than later statements made years after the alleged event. Currently, the objective evidence of record reflects that the Veteran informed his provider who he sought treatment for sleep apnea that he began experiencing symptoms in 1995. The matter is REMANDED for the following action: 1. Obtain any outstanding National Guard medical and personnel records dated from 1982 to 2003. Document all attempts to secure these records. 2. After securing any necessary release, obtain any outstanding private treatment records from Baptist South Sleep Disorders Center and Montgomery Pulmonary Consultants dated from 2009 to the present. 3. Thereafter, obtain an opinion from an examiner with appropriate knowledge and expertise to determine the etiology of the Veteran's sleep apnea. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. Based on a review of the record, the examiner is asked to provide a medical opinion as to: (a) Whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's sleep apnea is causally or etiologically related to the Veteran's service (June 1977 to June 1980), to include any period of ACDUTRA or INACDUTRA during his service in the National Guard from October 1982 to October 2003. The examiner should note that National Guard service is typically one weekend per month and two weeks per year of annual training. (b) The examiner should address the Veteran's contention that exposure to solvents used to clean weapons caused his sleep apnea. At present, 1995 is the year the Veteran began experiencing symptoms of daytime hypersomnolence and snoring. However, the examiner is asked to review any newly associated National Guard medical records when offering an opinion. (c) The examiner should also address prior etiological opinions on appeal, to include the February 2010 and September 2021 private opinions. A complete rationale for all opinions is required. If an opinion cannot be expressed without resort to speculation, the examiner should so indicate and discuss 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. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Cheng, 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.