Citation Nr: 21069464
Decision Date: 11/18/21	Archive Date: 11/18/21

DOCKET NO. 19-08 098
DATE: November 18, 2021

REMANDED

The claim of entitlement to service connection for obstructive sleep apnea is remanded.

REASONS FOR REMAND

The Veteran served on active duty from July 2009 to June 2010.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal of a rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO).

A remand is warranted for additional development.  

The RO should provide the Veteran with a VA compensation examination and opinion into his claim.  The record documents the diagnosis of obstructive sleep apnea (OSA).  And the record contains multiple lay statements from the Veteran, fellow servicemembers, and family members attesting to difficulty sleeping during and soon after service.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The record contains a June 2018 VA examination report into this claim, but the examiner did not provide a medical opinion about the claim.  

The matter is REMANDED for the following action:

1. Undertake appropriate development to obtain any outstanding records pertinent to the claim to the extent possible.  Include in the record any outstanding VA treatment records.

2. Schedule a VA examination to determine the nature and etiology of OSA.  After reviewing the electronic claims file, examining the Veteran, and interviewing him, the examiner should answer the following question.

Is it at least as likely as not (i.e., probability of 50 percent or more) that OSA had its onset in service or is related to a disease, event, or injury during service?

In answering this question, consider the evidence of record to include the multiple lay statements supporting the claim.  

Please explain in detail any opinion provided and the supporting rationale.

The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. 

In rendering the requested opinion, the examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology.  

In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture.

If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered.  In so doing, the examiner shall explain whether the 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(s).

 

 

G. A. WASIK

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Christopher McEntee

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.