Citation Nr: A21017948 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 190816-27749 DATE: November 5, 2021 REMANDED Entitlement to service connection for upper airway resistance syndrome (claimed as sleep apnea with CPAP) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from June 2010 to September 2018. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. This remand has been written consistent with the new AMA framework. In a May 2019 rating decision, the RO denied service connection for upper airway resistance syndrome. In August 2019, the Veteran submitted a notice of disagreement requesting a hearing with a Veterans Law judge. In May 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. 1. Entitlement to service connection for upper airway resistance syndrome (claimed as sleep apnea with CPAP) is remanded. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. "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. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter before the Board, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2018); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran contends that he is entitled to service connection for sleep apnea. Regrettably, pre-adjudication failure of the duty to assist based on inadequate examinations necessitates remand development prior to the Board's adjudication of the claim. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The Veteran had a sleep apnea VA examination in November 2018. The examiner noted that there was no diagnosis or finding of sleep apnea. However, the examiner noted that the Veteran had symptoms of persistent daytime hypersomnolence which was attributable to sleep apnea. The examiner specified that there were reports of snoring and insomnia in service but did not indicate whether these symptoms were attributable a sleep disorder. In May 2019, a second VA medical examination for sleep apnea was completed. See May 2019 VA Examination. The examiner did not render an opinion as to whether the Veteran's sleep condition was due to military service. He indicated that the Veteran was diagnosed with upper airway resistance syndrome in March 2019 and noted that the Veteran either has or has had sleep apnea in the past. The Board finds that a pre-decisional duty to assist error exists as the VA examinations of record are inadequate. The issues of entitlement to sleep apnea are remanded to correct a duty to assist error that occurred prior to the May 2019 rating decision on appeal. While the Agency of Original Jurisdiction (AOJ) obtained November 2018 and May 2019 medical opinions, these medical opinions do not provide adequate medical opinion or rationale regarding whether the Veteran's sleep condition(s), to include sleep apnea, had its onset in service or is otherwise related to service. Notably, the examiner did not consider the full results of the Veteran's sleep studies. While the May 2019 examiner noted the March 2019 sleep study results included an AHI of 3.3 and RERA index of 43.5, the examiner failed to discuss that the March 2019 VA sleep study results also included an overall AHI of 3.9 and RERA of 21/hour. See CAPRI Records. Any etiology opinion must take into account the Veteran's medical history. Therefore, a remand is necessary for an addendum opinion to discuss the nature and etiology of the Veteran's sleep condition. The matters are REMANDED for the following action: 1. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. 2. Obtain an addendum medical opinion regarding the etiology of the Veteran's sleep conditions, to include sleep apnea, from a medical professional with appropriate expertise. The examiner should review the Veteran's claims file and make a notation on the examination report that the claims file was reviewed. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one (or a telehealth interview, if an in-person examination is not feasible). Based on a review of the record, and a new examination if necessary, the examiner must address the following: (a.) Whether it is at least as likely as not that the Veteran's sleep condition, to include sleep apnea, was caused by and/or aggravated by his military service. 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 or such a conclusion as it is to find against it. The examiner must specifically consider and discuss the Veteran's lay statements regarding his sleep condition. The opinion and rationale should reflect such consideration. A complete rationale must be provided for all opinions presented. If the medical professional 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 medical professional 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). (Continued on the next page) (Continued on the next page) G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Schmidt 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.