Citation Nr: 21012461 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 20-21 336 DATE: March 4, 2021 ORDER Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1966 to October 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2019 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). This claim was initially remanded in an August 2020 Board decision. However, for the reasons addressed below the Board finds that another remand is warranted. Entitlement to service connection for sleep apnea is remanded. The Veteran contends that his sleep apnea should be directly service connected because he manifested symptoms of sleep apnea during his active duty service. Alternatively, the Veteran states that he is entitled to secondary service connection because his sleep apnea is aggravated by his service-connected tinnitus. See Third Party Correspondence received 1/14/21 at pages 4-5. Upon remand, the Veteran was provided a VA examination in November 2020. After the examination, the Veteran argued that the examination was not adequate because a nurse practitioner examined the Veteran and she only spent 15 minutes with him. See Third party correspondence received 1/14/2021. The Board will not address the merit of this argument at this time since the appeal is being remanded. The Board finds that a remand is warranted because after the November 2020 VA examination, the Veteran argued an additional theory of entitlement that the two prior VA examinations did not consider. Namely, that he has “explosive tinnitus”. See VA 21-4138 Statement in Support of Claim received 12/17/2020 – the same day a supplement statement of case on sleep apnea was issued. Additionally, on the same day, he submitted another article, “ Research Paper; Prevalence of hearing loss and tinnitus in Iraq and Afghanistan Veterans” in December 2020. This evidence was received by VA prior to certification and transfer to the Board. See 1/19/21 Form 8; 2/12/21 Appeal Substitution Review (Board docketing letter); see also 38 C.F.R. § 19.31(b)(1) (2020) (stating that a supplement statement of the case will be furnished when the agency of original jurisdiction receives additional pertinent evidence after a Statement of the Case or the most recent Supplemental Statement of the Case has been issued and before the appeal is certified to the Board ). Since there is a new theory of entitlement and additional medical evidence to be reviewed, the Board will remand for a new examination and medical opinion to consider the new theory and medical article. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board cannot substitute its own medical judgment for that of medical professionals). This matter is REMANDED for the following action: Schedule the Veteran for an examination with a licensed medical doctor to determine the nature and etiology of his sleep apnea. The doctor is asked to review the entire record, to include the buddy statements (see Affidavit received 1/14/2021) and the articles the Veteran has submitted in support of his claim (see Correspondence received 12/17/2020).   After a review of the record, the examiner is asked to answer the following: --Whether the Veteran’s sleep apnea is at least as likely as not related to his reported daytime sleepiness in service? The examiner is asked to reference and discuss the Veteran’s lay statements and buddy statements in the record. --Whether the Veteran’s sleep apnea is at least as likely as not (1) proximately due to a service-connected disability, OR (2) aggravated by a service-connected disability specifically tinnitus, which the Veteran calls “explosive tinnitus”. The examiner is asked to reference and discuss the medical articles of record. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered.   If an 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). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Dixon, 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.