Citation Nr: 21027677 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 15-04 421 DATE: May 6, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Marine Corps from October 1986 to October 1992, and in the U.S. Army from March 2003 to December 2003 and from November 2004 to January 2006. In a January 2019 decision, the Board denied entitlement to service connection for sleep apnea. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In December 2019, the Court granted a Joint Motion for Remand (JMR) of the Veteran and the Secretary of Veterans Affairs (the Parties) to vacate and remand the January 2019 decision. In June 2020 and October 2020, the Board remanded the appeal for additional evidentiary development. It has since been returned to the Board for further consideration. Entitlement to service connection for obstructive sleep apnea is remanded. Review of the record reveals that remand is required in order to satisfy the duty to assist. Specifically, remand is required in order to arrange for a VA examination and corresponding medical opinion. Initially, the Board notes that its prior remands directed the Agency of Original Jurisdiction (AOJ) to attempt to locate any outstanding service treatment records and VA treatment records. During development, in July 2020 the AOJ received a negative response that additional service treatment records could not be located, and the Veteran was later notified of this attempt. Also during development, additional VA treatment records were added to his claims file. Unfortunately, in December 2020 the AOJ was informed that treatment records from the VA medical center in Atlanta, Georgia from December 2003 to November 2004 and from January 2006 to the present could not be located. The AOJ then notified the Veteran of this attempt in January 2021. As such, all efforts to obtain the requested information have been exhausted, and further attempts to obtain the records would likely be futile. In its January 2019 decision, the Board found the Veteran competent to report his symptoms of sleep apnea. However, it was noted that the first report of treatment for symptoms of sleep apnea did not occur until December 2011, and that the Veteran was not diagnosed with a sleep apnea disability until March 2012. In the December 2019 JMR, the Court found that the Board's findings appeared to conflict with suggesting a positive history of sleep apnea in approximately 2009. Importantly, it does not appear that the Veteran has ever received a VA examination for obstructive sleep apnea. Given this fact, and the substantial amount of additional VA treatment records that have been added to the claims file since 2019, the Board finds that a VA examination and corresponding etiological opinion would help resolve this matter. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with a VA examiner of appropriate expertise to determine the nature and etiology of the Veteran's claimed obstructive sleep apnea. The examiner is to be provided access to the electronic claims file and must specify in the report that these records have been reviewed. All pertinent symptomatology and findings should be reported in detail, including all diagnoses. Any indicated diagnostic tests and studies should also be accomplished. The examiner should then opine whether the Veteran's obstructive sleep apnea at least as likely as not (50 percent or greater probability) began in or is otherwise the result of military service. The examiner should specifically address the Veteran's contentions and lay statements regarding onset of symptomatology and any continuity of symptomatology since discharge from service or since onset of symptomatology. The examiner should also address and reconcile any other pertinent evidence of record, if necessary. A complete rationale should also be provided. 2. After the development requested has been completed, the AOJ should review any report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures at once. MICHAEL D. LYON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Miller, 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.