Citation Nr: 21026464
Decision Date: 05/03/21	Archive Date: 05/03/21

DOCKET NO. 13-20 262
DATE: May 3, 2021

REMANDED

Service connection for a sleep disorder, to include on a secondary basis, is remanded.

REASONS FOR REMAND

The Veteran served on active duty from March 2002 to March 2005.  This included service in Southwest Asia.  This matter is on appeal from an October 2011 rating decision that denied service connection for a sleep disorder.  In July 2017, the Veteran testified regarding that issue at a hearing before the undersigned Veterans Law Judge of the Board of Veterans' Appeals (Board).  The Board remanded it for additional development in August 2017, April 2019, and September 2020.  

Sleep Disorder

Unfortunately, adjudication of service connection for a sleep disorder still cannot occur.  The September 2020 remand directed that the Veteran undergo a VA medical examination so that an opinion could be rendered regarding whether his diagnosed obstructive sleep apnea (OSA) onset during or otherwise is related to his service.  No examination was conducted, as the physician assigned this task determined that a review of the record was sufficient to render the opinion.  This physician's initial opinion and addendum opinion, both dated in October 2020, were against service connection.  However, they are deficient for two reasons.  First, very little supporting explanation was provided.  How the physician concluded it is less likely than not that the Veteran's OSA onset during service or is otherwise related to his service thus is unclear.  

The physician second determined that a condition other than OSA was "equally if not more likely" the cause of the Veteran's reported relevant in-service symptoms.  This seemingly conflicts with the aforementioned less likely than not conclusion.  Nothing in the opinion reconciles the conflict.  The applicable standard, as set forth in the Board's remand directive, is at least as likely as not.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  In sum, a remand for a new opinion required to remedy the aforementioned.  The medical professional assigned to render it shall be someone other than physician who rendered the October 2020 initial and addendum opinions.  The Board finally reemphasizes that it has made no determination, express or implied, concerning the credibility of any statements on file at this time.

This matter is REMANDED for the following action:

1. Arrange for a qualified medical professional other than the physician who rendered the October 2020 initial and addendum opinions to review the claims file and opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's OSA onset during his service or is otherwise related to his service.  

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A detailed explanation is required to support the opinion.  This means that relevant medical principles and/or medical literature should be discussed as it relates specifically to the Veteran, as shown by the medical and lay (non-medical) evidence.  In this regard, comment must be made on his reports of difficulty sleeping, daytime fatigue, and difficulty with concentration and focus that began during his service deployment and have continued ever since.

2. Then readjudicate this matter.  If it remains denied, follow established procedure for returning it to the Board.

 

 

Thomas H. O'Shay

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Becker

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.