Citation Nr: 21027208 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 17-09 044 DATE: May 5, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty from March 2000 to July 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript is of record. In September 2019, the Board denied service connection for obstructive sleep apnea. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In April 2020, the Court granted a Joint Motion for Remand (JMPR) that vacated and remanded the Board's September 2019 decision as it related to service connection for obstructive sleep apnea. In November 2020, the Board remanded the appeal to conduct additional development in accordance with the terms of the JMPR. 1. Entitlement to service connection for obstructive sleep apnea is remanded. In the April 2020 JMPR, the parties agreed that the Board was to obtain a medical opinion specifically discussing whether the Veteran's current obstructive sleep apnea was caused by or a result of his exposure to burning oil wells and burn pits while in service. Accordingly, in the November 2020 remand, the Board requested an opinion from an appropriate clinician regarding the etiology of the Veteran's obstructive sleep apnea. The November 2020 remand directives specifically requested the examiner to consider and discuss the following in proffering the opinion: 1) the Veteran's exposure to burning oil well fires and burn pits; 2) the Veteran's October 2003 post-deployment examination report that reflects exposure to smoke from oil fire, trash, feces and exhaust fumes, and his statement of feeling tired after sleeping; 3) April 2014 lay statements from two former servicemembers that witnessed the Veteran's snoring in service. A VA medical opinion was provided in December 2020. The examiner opined that the Veteran's obstructive sleep apnea is not, at least as likely as not, incurred in or caused by service. Unfortunately, this opinion does not adequately address the Veteran's contentions of oil well and burn pit exposure as the cause of his obstructive sleep apnea. Thus, the December 2020 medical opinion is incomplete, and a further addendum is necessary. See Stegall v. West, 11 Vet. App. 268 (1998). Further, in the April 2021 Informal Hearing Presentation, the Veteran's representative challenged the December 2020 examiner's qualifications to provide an expert opinion on the specific issue of whether the Veteran's obstructive sleep apnea was related to service. In Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019), the United States Court of Appeals for the Federal Circuit (Federal Circuit) found that when a challenge to the competency of the medical examiner is raised, the Board must make a factual finding as to whether the medical examiner is competent. The challenge must be more than a general assertion that an examination or opinion is inadequate and must be raised by the Veteran in the first instance. A challenge raised under the above circumstances rebuts the presumption of competency and VA must satisfy its burden of persuasion as to the examiner's qualifications by providing the Veteran with information about the qualifications of the examiner. Because the Veteran has satisfied this requirement, the burden has shifted to VA to establish the examiner's qualifications. On remand, the RO should obtain the qualifications of the December 2020 VA examiner and provide a copy to the Veteran's representative. The matters are REMANDED for the following action: 1. Provide the Veteran's representative with a copy of the December 2020 VA examiner's resume/CV and any other available information regarding his qualifications. 2. Obtain an addendum opinion from an appropriate clinician on the nature and etiology of the Veteran's obstructive sleep apnea. The claims file, and this Remand, should be reviewed by the examiner. The examiner is to opine as to whether it is at least as likely as not that the Veteran's sleep apnea had onset in service or is otherwise related to service, to include as a result of his oil well and burn pit exposures. A rationale must be provided. In so doing, the examiner must discuss the clinical significance of the following: a. The Veteran's exposure to burning oil well fires and burn pits (as reflected in statement from the Veteran received on July 12, 2019, and the June 2019 hearing transcript at 14); and b. The Veteran's October 2003 post-deployment examination report that reflects exposure to smoke from oil fire, trash, feces, and exhaust fumes. If the examiner does not find either a) or b) clinically significant, the examiner must explain why this is so. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Jake Choi, 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.