Citation Nr: 21014627 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 18-02 636 DATE: March 15, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1981 to January 1982, March 2003 to July 2003, and from November 2010 to September 2014. This matter returns to the Board of Veterans’ Appeals (Board) following the issuance of a Joint Motion for Remand (JMR) by the Court of Appeals for Veterans Claims (Court) in November 2020 in response to a June 2019 Board decision. 1. Entitlement to service connection for sleep apnea is remanded. The Veteran has submitted a claim for service connection for sleep apnea. Specifically, he contends that his sleep apnea was aggravated during his third period of active duty service. Additionally, he has generally alleged that his sleep apnea began during his second tour of duty, but that he did not seek treatment. The Board observes that although an examination was conducted in April 2015 with regard to this claim, that examination only confirmed a diagnosis of sleep apnea in approximately 2007, and did not provide any sort of medical opinion regarding the etiology of the condition, or any potential aggravation of that condition. VA’s duty to assist includes providing a medical examination and obtaining an opinion when it is necessary to make a decision on a claim. 38 U.S.C. § 5103A (d) (West 2014); 38 C.F.R. § 3.159 (2016). Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of a diagnosed disability or symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Although the Court did not explicitly order an examination take place in the JMR, given the additional analysis required by the Court, the Board finds that a new examination should occur and opinions rendered regarding the possible etiology or aggravation of his sleep apnea. As such, the Veteran’s claim is remanded so that the Regional Office (RO) can obtain an examination and complete any additional development necessary. The matters are REMANDED for the following action: 1. Invite the Veteran to submit any additional evidence in support of his claim. 2. Schedule the Veteran for an examination by an appropriate clinician to evaluate the nature and etiology of his sleep apnea disorder. The examiner should opine as to whether or not the Veteran’s sleep apnea began during his second tour of duty (March to July 2003) or in the period between his second (March to July 2003) and third (November 2010 to September 2014) periods of duty based upon the available evidence contained in the claims file. The examiner is also instructed to consider the Veteran’s lay statements regarding observable symptomatology. Should the examiner determine that the Veteran’s sleep apnea began between the second and third periods of duty, the examiner is instructed to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that his currently diagnosed sleep apnea was aggravated beyond its natural progression during his third period of duty. In rendering this requested opinion, the examiner should discuss the Veteran’s AHI scores from the 2008 and 2012 sleep studies, as well as the articles and/or treatises submitted by the Veteran. The entire claims file should be reviewed. All indicated studies deemed necessary by the examiner should be performed, and all findings of these tests should be reported in detail. (Continued on the next page)   All opinions must be accompanied by adequate reasons and bases. If the examiner cannot provide the requested opinion without resorting to mere speculation, they should provide a complete explanation stating why this is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that they have exhausted the limits of current medical knowledge in providing an answer to that particular question(s). M. Pryce Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Q. Hernan, Associate Counsel