Citation Nr: 21022918 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 18-05 307 DATE: April 19, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. REASONS FOR REMAND The Veteran had active duty from July 1995 to August 2003, with subsequent service with the Texas Air National Guard. This matter is on appeal from an April 2015 rating decision. The Board notes that this matter was initially denied in an April 2015 rating decision. The Veteran filed a June 2015 notice of disagreement, then indicated in a July 2015 statement that he did not want to disagree with that decision, but rather wished to reopen his claim. The RO subsequently continued the denial of the claim in a September 2015 rating decision. As new and material evidence was associated with the claims file within 1 year of the April 2015 rating decision, the Board will deem that rating decision to be the one on appeal. The Veteran had a hearing before the undersigned Veterans Law Judge in April 2021. 1. Entitlement to service connection for OSA is remanded. The Veteran contends that his OSA developed due to or during reserve service, with a diagnosis in early 2009. During his Board hearing, he reported various symptoms of OSA during service. As he has indicated that his OSA may have had its onset during his service in the National Guard/Reserves, the AOJ should attempt to verify the all the periods of the Veteran’s active duty, including period(s) of active duty for training or inactive duty for training. After the Veteran’s periods of active service have been clarified, the AOJ should obtain a VA medical opinion to address whether the Veteran’s OSA developed during a period of active service. The matters are REMANDED for the following actions: 1. Obtain any outstanding service personnel records, to include all documents pertaining to his service in the Texas Air National Guard. Verify all active duty dates, to include for active duty for training and inactive duty training dates for alleged service in the Texas Air National Guard or other reserve service, following the Veteran’s 2003 separation from service. If necessary, a request should be made to the Defense Finance and Accounting Service (DFAS). Document all requests for information as well as all responses in the claims file. 2. After the above record development has been accomplished, obtain a VA medical opinion for the OSA claim. The AOJ should include the dates of all periods of active duty in its request for a medical examination. Active service includes any period of active duty for training during which the individual concerned was disabled from a disease or injury incurred in the line of duty. 38 U.S.C. § 101(21), (24); 38 C.F.R. § 3.6(a). Active service also includes any period of inactive duty training during which the individual concerned was disabled from an injury incurred in the line of duty. Id. Accordingly, service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, while performing active duty for training or from injury incurred or aggravated while performing inactive duty training. 38 U.S.C. §§ 101(24), 106, 1110. The examiner must review the claims file. If a VA examination is deemed warranted by the VA medical opinion provider, one should be obtained. The examiner is asked to provide a response to the following: Is OSA at least as likely as not related to service, including any period of verified active duty service? The VA medical opinion provider should consider whether OSA resulted from disease or injury incurred in, or aggravated, while performing active duty for training AND whether OSA resulted from injury incurred or was aggravated while performing inactive duty training. Provide a rationale to support the opinion(s). In offering any opinion, the examiner must consider the full record, to include the (a) lay statements regarding the incurrence and continuity of symptomatology (including the April 2021 Board hearing testimony and lay statements such as the July 2016 statement from his wife, the July 2016 notice of disagreement, and the January 2018 VA Form 9), (b) service treatment records and service personnel records (including the multiple service emails regarding OSA in 2009 and 2011 associated with the service treatment records received in March 2018), and (c) VA and private medical records. An explanation for any opinion offered should be provided. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Lindio 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.