Citation Nr: 21011012
Decision Date: 02/26/21	Archive Date: 02/26/21

DOCKET NO. 15-23 931
DATE: February 26, 2021

REMANDED

Service connection for sleep apnea is remanded.

REASONS FOR REMAND

The Veteran served on active duty from September 1983 to July 1986, from February to May 2003, and from December 2003 to March 2005.  We thank him for his service, including his service in Southwest Asia, where he served from February 2004 through February 2005 during the Gulf War.  He appeals for service connection for sleep apnea, based on a claim filed in January 2012.  There had been a prior final denial of service connection for difficulty sleeping in March 2007 and the Board reopened the claim based on new and material evidence and remanded the appeal to the agency of original jurisdiction in October 2018. 

The Board remanded this appeal in October 2018 in part to have a VA examiner render a medical opinion as to whether it is at least as likely as not (a probability of at least 50 percent) that the Veteran's current sleep apnea disorder had its onset during active service or is otherwise related to service. The Board finds that a supplemental medical opinion is necessary to address the Veteran’s lay statements. Miller v. Wilkie, 32 Vet. App. 249 (2020) requires a VA examiner to address the veteran's lay statements to provide the Board with an adequate medical opinion.

The Veteran originally claimed difficulty sleeping in August 2006.  He indicated in May 2013 and June 2015 that he has been complaining about difficulty sleeping since he was discharged in 2005 and/or that his sleep apnea occurred in Iraq.  As the claim is being remanded, additional treatment records will be requested.  

The matters are REMANDED for the following action:

1. Make arrangements to obtain any additional medical records, including all VA medical records of treatment which are not of record.  

2. After the above development is accomplished, please refer the claim to a clinician for an opinion as to the nature and etiology of the Veteran’s current sleep apnea disorder.  The Veteran’s claims folder must be made available to and reviewed by the clinician.  Based on review of the record, the clinician is requested to provide an opinion as to:

a. Is Veteran’s sleep apnea at least as likely as not (a 50% or greater probability) related to service? The clinician is requested to consider and address, the Veteran’s report of difficulty sleeping in 2006 (his last period of service ended in 2005); and his report in May 2013 and June 2015 that he has been complaining of sleep problems since he left active duty in 2005.  

b. If the basis of a negative opinion is the absence of evidence of treatment in the Veteran’s service treatment records, the clinician must explain why it would be reasonable to have an expectation of in-service treatment for sleep apnea in the circumstances presented.

The clinician must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate.  The clinician should take into consideration that the Veteran is competent to report in service and post-service symptom experiences.  If the clinician cannot provide an opinion without resorting to speculation, the clinician should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made.

 

M. C. GRAHAM

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	C. Lawson

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.