Citation Nr: 21023517 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-20 457 DATE: April 20, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from September 1993 until his honorable discharge in December 1995. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran requested a Board hearing in his VA Form 9, but later withdrew his request and requested 90 days to submit argument. His representative then submitted a brief outlining his position. A second claim concerning a psychiatric disability is pending at the Board for a hearing with a Veteran’s Law Judge and so is not ripe for a decision at this time. Entitlement to service connection for obstructive sleep apnea. The Veteran requested a Board hearing in his May 2016 VA Form 9. He waited until November 2018 for a hearing but withdrew his request before the hearing could take place. During this time the claim was not developed; however, other pending claims were. As such, various medical records were added to the file before the claim was certified to the Board. Since the RO issued the SOC, new VA treatment records, Social Security Administration (SSA) records, and buddy statements were associated with the file before the claim was certified to the Board. Waiver of RO review of this evidence is not currently required because the claim is being remanded to the RO for further development. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA's duty to assist includes providing a medical examination when one is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The RO did not provide the Veteran with an examination. 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 diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, has a presumptive disease during the pertinent presumptive period, or is service-connected for a disability that may have caused or aggravated the Veteran's disability; and (3) indicates that the claimed disability may be associated with the in-service event, injury, 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) (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). The file also contains a December 2015 DBQ that the Veteran or his representative submitted. The Board cannot rely on this DBQ as it does not provide an opinion on the etiology of the Veteran’s sleep apnea nor a rationale for its conclusions. VA is required to provide the Veteran with an adequate medical examination in order to determine whether the Veteran’s sleep apnea is from service. The Board may not make a medical determination without relying on independent medical evidence. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). The Veteran asserts that his sleep apnea is from service. As a result, the claim must be remanded in order to obtain a VA medical examination. If the DBQ of record was not provided by VA, then VA has a duty to assist the Veteran develop his claim by providing a VA examination. If it was provided by VA, then the examination was inadequate. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Upon remand, the RO must issue proper VCAA notice, obtain any outstanding relevant treatment records, review the file, and obtain an adequate VA examination. The matter is REMANDED for the following action: 1. After obtaining appropriate authorization, obtain and associate with the claims file any outstanding VA treatment records and any outstanding, relevant private treatment records related to the Veteran’s claim. 2. After the above development has been completed, schedule the Veteran for a VA examination for his obstructive sleep apnea. The examiner should review the claims file and a copy of this remand. The examiner is asked to provide a response to whether the Veteran’s obstructive sleep apnea is at least as likely as not (50 percent or greater probability) related to service? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms. It should be noted whether the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? 3. After, readjudicate the Veteran’s claims. If the claims remain denied, send the Veteran and his representative a supplemental statement of the case (SSOC), and allow them an appropriate time to respond before returning the issue to the Board for further appellate consideration. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. A. Johnston, 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.