Citation Nr: 21005650 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 16-06 983 DATE: February 2, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from December 1988 to April 1996. This matter is 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). The Veteran testified before the Board at a hearing held by the undersigned in January 2019. A transcript of the hearing is of record. Subsequently, the Board remanded the claim in February 2019 for further development. Following the September 2020 supplemental statement of the case, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review in October 2020. However, in October 2020, the Agency of Original Jurisdiction (AOJ) informed the Veteran that his appeal would remain in the legacy review system and would not be considered under the modernized review system. As such, the Veteran’s claim for service connection for sleep apnea is properly before the Board.   Entitlement to service connection for sleep apnea is remanded. Following the February 2019 Board remand, the Veteran attended a VA examination in September 2020 for an evaluation of his sleep apnea. The VA examiner opined that the Veteran’s diagnosed sleep apnea was less likely than not incurred in or caused by the Veteran’s service. In support of the opinion, the VA examiner noted the Veteran’s and the Veteran’s spouse’s lay statements, as requested in the February 2019 Board remand directives. Regarding the spouse’s statements regarding apneic episodes specifically, the VA examiner noted that “[a]pneic episodes can also be caused by a variety of factors such as narcotic use, alcohol use, etc. and are not specific to OSA.” However, the record contains no evidence of such narcotic use or alcohol use, so the rationale in the opinion does not appear to be specific to the Veteran’s history. In addition, the VA examiner noted that the Veteran was not diagnosed with sleep apnea until 2008, which was 12 years after his service and shows a lack of chronicity and/or the presence of a sleep apnea diagnosis. However, the record reflects that the Veteran was first diagnosed with sleep apnea in 2005. Thus, the opinion also seems to be based on an inaccurate factual premise. Moreover, the Veteran stated at his January 2019 Board hearing that he did not seek treatment for his symptoms during his service because he did not want to look like a malingerer. Furthermore, he stated that he did not seek treatment for his sleep apnea symptoms after service because he was not aware of what sleep apnea was. For the above described reasons, an additional opinion is necessary. The matter is REMANDED for the following action: 1. Obtain and associate with the claims file VA treatment records from September 2020 to the present. 2. Obtain a medical opinion from an appropriate medical professional for the Veteran’s sleep apnea claim. The electronic claims file must be made available to the medical professional for review in connection with the request for an opinion. If the medical professional determines that an in-person examination (including via telehealth interview) is needed in order to answer the questions posed, then such should be scheduled. After reviewing the claims file, the medical professional should address the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea is related or attributable to his military service, including the observable symptoms described therein? The examiner is asked to consider the Veteran’s competent lay statements, including his February 2016 VA Form 9, his testimony at the January 2019 Board hearing, and his October 2020 written statement, regarding the symptoms he experienced during service and why he did not seek treatment until his diagnosis in 2005. The examiner is also asked to consider the Veteran’s spouse’s February 2016 written statement and her testimony at the January 2019 Board hearing regarding her observation of his symptoms. The medical professional must fully explain the rationale for any opinion, with citation to supporting clinical data/lay statements, as deemed appropriate. If the medical professional cannot provide the requested opinion without resorting to speculation, he or she should   expressly indicate this and provide supporting rationale as to why an opinion cannot be made without resorting to speculation. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Breitbach, Associate 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.