Citation Nr: 21077359 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 18-05 397 DATE: December 29, 2021 REMANDED Entitlement to an initial compensable rating for obstructive sleep apnea (OSA) is remanded. REASONS FOR REMAND The Veteran had active duty service from October 1984 to February 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied service connection for central sleep apnea and assigned a noncompensable rating, effective November 9, 2016. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in December 2020. A copy of the transcript has been reviewed and associated with the claims file. Entitlement to an initial compensable rating for obstructive sleep apnea (OSA) is remanded. The Veteran underwent a VA examination in January 2017, at which time the examiner assessed him with sleep apnea and noted that he had not elected to pursue a continuous positive airway pressure (CPAP) machine at that time. However, the Veteran underwent a central nervous system and neuromuscular diseases examination in January 2017, which noted that he had sleep apnea requiring the use of a breathing assistance device such as a CPAP machine. Subsequent VA treatment records in December 2018 and May 2019 note that the Veteran was having difficulty with his CPAP machine and was unable to wear the device. He would try again after his cervical surgery. The Veteran testified at the hearing in December 2020 and noted that his sleep apnea had worsened since the January 2017 VA examination. Moreover, he noted that he suffered from excessive tiredness, exhaustion, and fatigue throughout the day. However, the VA examiner did not ask him if he had hypersomnolence. After a review of the record, the Board finds that a new VA examination is warranted on remand. In this regard, there is evidence that the Veteran was prescribed a CPAP machine. Moreover, the examiner did not comment on whether he had daytime hypersomnolence. Lastly, the examination was performed almost five years ago, and the Veteran indicated that his symptoms had worsened since January 2017. Accordingly, the Board finds that a new VA examination is warranted on remand in order to assess the severity of the Veteran's sleep apnea. The matter is REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran's updated VA treatment records from December 2019 to the present. 2. Obtain and associate with the claims file the VistA images associated with the Veteran's VA treatment records. 3. After completion of #1 and #2, forward the claims file to a VA examiner to assess the severity of the Veteran's service-connected sleep apnea. The examiner should review the claims file in its entirety, including a copy of this remand, and such review should be noted in the examination report. The examiner should discuss the severity of the Veteran's sleep apnea, including: whether it manifests in persistent day-time hypersomnolence; requires use of breathing assistance device such as a continuous airway pressure (CPAP) machine; and/or has led to chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requires tracheostomy. The examiner should indicate how far back these results apply, i.e., one year, two years, etc. The examiner must provide a comprehensive rationale for each opinion provided. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. (Continued on the next page) If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Merrick 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.