Citation Nr: 21027347
Decision Date: 05/05/21	Archive Date: 05/05/21

DOCKET NO. 07-31 333A
DATE: May 5, 2021

REMANDED

Entitlement to service connection for obstructive sleep apnea (OSA) is remanded.

REASONS FOR REMAND

The Veteran served on active duty from October 1981 to April 2005. The Board denied the claim of entitlement to service connection for OSA in a January 2020 Board decision. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). The Veteran and the Secretary of Veterans Affairs (the Parties) filed a Joint Motion for Partial Remand (JMPR) with the Court in February 2021. The Court issued an order dated in March 2021 granting the JMPR and remanding the claim to the Board.

The JMPR indicates the Board erred by failing to ensure compliance with the duty to assist when it relied on an inadequate examination that did not properly address the Veteran's lay statements regarding an OSA diagnosis soon after separation from active service. Specifically, the JMPR notes that the November 2019 VA medical opinion, which the Court noted formed a key part of the rationale against a nexus to service, did not address multiple lay statements including an October 2010 VA Form 9, a March 2016 VA examination, and a July 2017 Informal Hearing Presentation, which indicated the Veteran might have been diagnosed with OSA shortly after service and possibly as early as 2005. The parties agreed a new examination is necessary to clarify the nature and etiology of the Veteran's OSA. 

This matter is REMANDED for the following action:

Schedule the Veteran for a VA medical examination to determine the nature and etiology of his sleep apnea. The record must be made available to the examiner for review and the examination report should note that the claims file was reviewed. The examiner's attention is directed to the Veteran's reported history of sleep trouble during service and diagnosis of sleep apnea as noted above. The most up-to-date disability benefits questionnaire should be used, and all indicated tests should be performed. A complete, pertinent history should be obtained from the Veteran. The examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's sleep apnea had onset during or was caused by his active service. 

A complete rationale, addressing the Veteran's reported history, should be provided for all opinions.

 

 

A. C. MACKENZIE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	B. Banks, 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.