Citation Nr: 21012908 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 17-06 168 DATE: March 5, 2021 REMANDED Entitlement to service connection for a sleep disorder, to include obstructive sleep disorder (OSA), hypersomnia, and hypopnea, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1987 to May 1991. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. The record was held open for 30 days for the submission of a nexus statement; however, no evidence was received. The Veteran is advised that he will have an opportunity to submit any evidence, such as a nexus opinion, as this matter is being remanded for additional development. Service Connection Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Where a disease is first diagnosed after discharge, service connection will be granted when all the evidence, including that pertinent to service, establishes it was incurred in active service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.30(d). Service connection generally requires evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the condition incurred or aggravated by service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The scope of a disability claim includes any disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 4-6 (2009). VA is obliged to provide an examination or obtain a medical opinion in a claim of service connection when the record contains competent lay or medical evidence of (1) a current diagnosed disability or persistent or recurrent symptoms of disability; (2) evidence establishing that the veteran suffered an event, injury or disease in-service; and (3) an indication that the claimed disability or symptoms may be associated with the established event, injury, or disease in-service or with another service-connected disability; and (4) insufficient competent medical evidence for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006); see also 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Furthermore, the threshold for finding a link between current disability and service is low. McLendon, 20 Vet. App. at 83. The Veteran is competent to report symptoms and experiences observable by his senses. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Service connection for a sleep disorder, to include OSA, hypersomnia, and hypopnea. After review of the record, a remand is required in this case to ensure that VA’s responsibilities under the duty to assist are followed and that the Veteran is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran contends service connection for a sleep apnea. See 2/12/2013 VA Form 21-526EZ. The record showed that the Veteran was diagnosed with OSA, hypersomnia with sleep apnea, and mild to moderate hypopnea syndrome. See 5/21/2015 Medical Treatment Record – Government Facility, at pages 2 and 10; see also 8/12/2014 STR – Medical, at pages 16, 20, and 94. Regarding the in-service incident, the Veteran testified that during active service, he would constantly fall asleep “at the drop of a hat” whenever he would sit down. Additionally, the Veteran testified that it worsened post active service. Further, the Veteran reported that he was let out of the Air National Guard due to his sleep disorder. See 4/30/2015 VA Form 21-4138; see also 1/25/2016 Buddy / Lay Statement; 1/11/2021 Hearing Transcript, at pages 2 and 3. The Board finds the Veteran to be credible in describing his in-service incident as it is consistent with other evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007); see also Miller v. Wilkie, 32 Vet. App. 249, 254 (2020) (stating that the duty to assist also includes addressing a veteran’s lay reports of symptoms). The record shows a positive nexus opinion from Dr. H.B., M.D., which stated that more likely than not the Veteran has had sleep apnea dating back to young adulthood. Dr. H.B., based his opinion on structural physical characteristics of the Veteran that do not change over time, such as a neck collar size of 17 inches, short squat neck, and narrow oropharyngeal channel. See 10/30/2015 Medical Treatment Record – Non-Government Facility. However, this opinion only contains a scant rationale, so it is not enough to put these matters into equipoise on the last service connection element. As such, on remand, the RO should schedule a VA examination to determine the nature and etiology of the Veteran’s sleep disorders and address any relationship to service.   This matter is REMANDED for the following action: Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of the Veteran’s sleep disorder, to include OSA, hypersomnia with sleep apnea, and mild to moderate hypopnea syndrome. The clinician is to review the virtual file, including a copy of this Remand. After review of the claims file, the examiner is to specifically address: Whether it is at least as likely as not (probability of 50 percent or more) that the Veteran’s current sleep disorder, to include OSA, hypersomnia with sleep apnea, and mild to moderate hypopnea syndrome is related to an in-service injury, event, or disease. **For the purpose of formulating the above opinion, the examiner is to consider the Veteran’s competent lay statements that since service, he would constantly fall asleep “at the drop of a hat” whenever he would sit down. Additionally, the Veteran testified that it worsened post active service. Further, the Veteran reported that he was let out of the Air National Guard due to his sleep disorder. See 4/30/2015 VA Form 21-4138; see also 1/25/2016 Buddy / Lay Statement; 1/11/2021 Hearing Transcript, at pages 2 and 3.** The examiner is to state whether a nexus between the Veteran’s right knee disability and service is medically consistent with the information provided by the Veteran. (The Board reminds the Veteran that in asking the examiner to accept the history he provided, the Board is not at this time making an assessment of the credibility of his statements. Note: A full credibility determination will be made at a later date, if needed, once additional evidence has been added to the claims file.) A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If medical literature is reference, please provide a copy of it or a full citation that allows general access. 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 J. Fuentes, 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.