Citation Nr: 21023402 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 13-15 379 DATE: April 20, 2021 REMANDED The claim for service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran had active duty service in the Army from May 1969 to May 1971, and from June 2004 to June 2005. For his meritorious service, the Veteran was awarded (among other decorations) the Army Commendation Medal, Army Achievement Medal, and the Vietnam Service Medal. The Veteran was a member of the Army National Guard and completed thirty-three years of service with the Army National Guard. The Board previously remanded this case on several occasions, most recently in December 2020, to obtain a VA Compensation and Pension examination to determine whether recently diagnosed sleep apnea was etiologically related to the Veteran’s service. Since there is, unfortunately, still further development action required in this regard, the case is again being remanded for that reason. The claim for service connection for sleep apnea is remanded. A decision is not possible at this time and still one more attempt at development is warranted. Whereas a competent medical opinion was obtained regarding the etiology of sleep apnea on the December 2020 VA examination weighing against the claim, there is a key oversight here on the reasoning the VA examiner gave and for which the opinion simply cannot be afforded probative weight. An opinion is generally deemed probative or lacking in persuasive value not in isolation, but usually taking into account its factual bases and rationale. See Bloom v. West, 12 Vet. App. 185, 187 (1999); see also Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (the probative value of medical evidence is based on the physician’s knowledge and skill in analyzing the data, and the medical conclusion the physician reaches). In this case, the December 2020 Board remand directive requested a VA examination and opinion on whether sleep apnea was due to service, considering the competent lay witness evidence on issue of causation, not just medical documentation. This was in accordance with applicable VA law. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). It was asked the VA examiner consider the Veteran’s statement he had experienced sleep problems since service, along with post-service VA medical records noting his assertion that he had issues with inadequate sleep as early as 7 months after service, and others had witnessed apnea events within 18 months after service. The December 2020 VA examiner’s opinion, not finding the presence of a causal nexus to service, did notably state the Veteran had relevant reported symptomatology, such as snoring and similar issues, which sometimes meant sleep apnea though not always. However, the examiner did not find the subjective side of the reported history enough here to link sleep apnea to service. Generally speaking in any claim, there are several factors which may bear upon weighing evidence. Just as important, the Board’s role is to weigh the evidence and this capacity does not include stating independent medical judgments. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (citing Colvin v. Derwinski, 1 Vet. App. 171 (1991)). As to consideration of the lay evidence of record, the examiner stated the following: “Evidence which is subjective complaint, unsubstantiated by any additional objective evidence and diagnostic tests is not sufficient to state that his sleep apnea had its onset during or within a year of service.” This statement is not indicative of a currently accepted principle of VA law. If the examiner had a medical justification for not taking subjective history alone as significant to an opinion given, that might be a different consideration, though there is not a justification stated from the opinion. Accordingly a re-examination is warranted. The matter is REMANDED for the following action: 1. Obtain the Veteran’s most recent VA outpatient treatment records and associate them with the claims folder. 2. Schedule the Veteran for VA examination as to the nature and etiology of sleep apnea. A complete copy of the claims folder must be reviewed along with this remand. The examiner should opine whether the diagnosed disorder as at least as likely as not (50 percent or greater probability) was incurred in service, or is otherwise etiologically related to service. The examiner is requested to consider for this purpose, the Veteran’s report that he has experienced sleep problems since service. Also consider and address post-service treatment showing reports of inadequate sleep as early as 7 months after service and specific reports of witnessed apneas with snoring and interrupted breathing while sleeping within 18 months after service (based on the VA outpatient records from January 2006 and December 2006 respectively). It is further requested the examiner indicate consideration of the December 2020 VA examination and opinion on the same subject. As a point of VA law and pertinent to the prior examination, the Board observes that generally speaking, there is no VA requirement of objective records to corroborate competent subjective lay witness history (the one exception a wholly different type of claim than alleged here, which would be for PTSD or similar condition based on an alleged stressor from service, again probably apparent not raised here). The VA examiner is requested to give a complete rationale for any opinion provided. If for any reason an opinion is not possible without resort to speculation then the examiner should state that and why it happens to be the case. 3. Then review the claims file. If the directives specified in this remand have not been implemented, take proper corrective action. Stegall v. West, 11 Vet. App. 268 (1998). A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Lyons, 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.