Citation Nr: 21007015 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 15-03 107 DATE: February 8, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from August 1984 to September 1989 and in the United States Army from March 2003 to April 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2012 rating decision of a U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In August 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The transcript is in the record. The issue was previously before the Board in May 2018, when it was remanded for further development. Entitlement to service connection for sleep apnea is remanded. As a general matter, once VA undertakes to provide an examination, it must provide an adequate one or, at a minimum, notify the claimant why one will not be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The October 2017 VA medical opinion does not consider all the relevant evidence of record, including lay statements. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Dalton v. Nicholson, 21 Vet. App. 23 (2007). The October 2017 VA examiner opined that the Veteran’s obstructive sleep apnea is less likely as not related to, caused by, or aggravated by active service. The VA examiner discussed some of the evidence, including service treatment records, a July 2004 third-party statement from a military medic, and a September 2007 private sleep study and referenced a medical literature review. However, the October 2017 VA examiner did not address or resolve the VA medical opinion’s inconsistency with an August 2017 private medical opinion that did relate the Veteran’s sleep apnea as well as chronic maxillary sinusitis and acute bronchitis to service. The VA examiner also did not address the Veteran’s or the Veteran’s spouse’s August 2017 credible lay testimony that the Veteran did not have sleep apnea symptoms before service, but had symptoms during and continuously ever since service, or the Veteran’s qualification of reported medical history in the service treatment records. Further, the August 2017 VA examiner did not have the opportunity to address a later February 2019 private medical opinion that also related the Veteran’s obstructive sleep apnea and bronchitis to in-service sinusitis or January 2020 third-party statements about the Veteran’s in-service snoring. An addendum VA opinion addressing the Veteran’s and third-party lay statements about the Veterans’ sleep apnea symptoms in service and since service and all other relevant evidence of record, including private medical source statements that support the Veteran’s claim, is warranted. The matter is REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the claims to the extent possible. Document all requests for information as well as all responses in the claims file. 2. Obtain addendum VA opinions from an appropriate clinician(s) regarding the Veteran’s sleep apnea, sinus problems, and bronchitis. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinions below. The examiner is asked to provide a response to the following: (a.) Is sleep apnea at least as likely as not related to service? (b.) Are sinus problems at least as likely as not related to service? (c.) Is bronchitis at least as likely as not related to service? (d.) Is sleep apnea at least as likely as not proximately due to a service-connected disability? (e.) Is sleep apnea at least as likely as not aggravated, i.e., worsened beyond its natural progression, by a service-connected disability? 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. Provide a rationale to support the opinions. In providing the requested opinion, consider the Veteran’s description of in-service and post-service symptoms. The Veteran and spouse testified in August 2017 that the Veteran did not have sleep apnea symptoms before service but has had symptoms during and continuously ever since service. The Veteran also qualified the reported medical history in the service treatment records. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of current disability, this should be noted. Stated another way, do the Veteran’s reports about symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James Hekel, 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.