Citation Nr: 21007695 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 16-59 104 DATE: February 10, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1979 to June 1995. This matter originates from a December 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran testified at a Board of Veterans’ Appeals (Board) hearing. A copy of the hearing transcript is of record. In a January 2020 decision, the Board denied the issue on appeal. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In a September 2020 Order, the Court granted the parties’ Joint Motion for Partial Remand (JMPR) vacating the Board’s denial of service connection for sleep apnea and remanding the matter pursuant to 38 U.S.C. § 7252 (a) for readjudication consistent with the JMPR. The case has now been returned to the Board for further appellate action. In the JMPR, the parties agreed on vacatur of the denial of service connection for sleep apnea for inadequate reasons or bases by the Board for not providing the Veteran with an examination. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); Euzebio v. Wilkie, 31 Vet. App. 394, 406 (2019). This is in consideration of the evidence which includes the Veteran’s hearing testimony that he thinks that he had symptoms of daytime sleepiness in service as well as snoring and moments where he stopped breathing, and a statement from a fellow serviceman who said that he observed the Veteran snoring loudly in service. In consideration of this evidence and a postserivce diagnosis of sleep apnea, the Veteran should be afforded a VA examination. Id. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate examiner to determine the nature and etiology of his sleep apnea. The claims file must be made available to, and reviewed by the examiner. Any indicated tests and studies must be performed. Based on the examination results and review of the record, the must provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that the Veteran’s sleep apnea had its onset during his active service, or is otherwise etiologically related to such service. In providing the requested opinion, consider the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms. 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 his current disability, this should be noted. Stated another way, do the Veteran’s reports about his 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. A complete and detailed rationale must be provided for all opinions expressed. 2. Then, readjudicate the issue on appeal. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shawkey, Anne M. 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.