Citation Nr: 21029093 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 15-24 248 DATE: May 12, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1978 to May 1998. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of May 2015 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Board previously remanded this case for further development in November 2018 and again in October 2020. The RO issued its most recent supplemental statement of the case (SSOC) in February 2021. 1. Entitlement to service connection for sleep apnea is remanded. In its October 2020 remand, the Board directed that a VA examiner provide an addendum opinion addressing the relevance, if any, of reports of respiratory conditions in the Veteran's service treatment records (STR). See October 2020 Board Decision at 8-9; see also id. at 6-7 (directing that the Veteran be provided with the opportunity to submit relevant private treatment records). The Veteran asserts that the resulting VA medical opinion did not comply with this directive. See February 2021 Correspondence at 1-2 (asserting that "the January... 2021 medical opinion [did not] provide a statement regarding the effect [of in-service respiratory conditions]"). After reviewing the evidence of record, the Board finds that this assertion is not consistent with the plain text of the January 2021 VA examiner's opinion. See January 2021 VA Medical Opinion at 2 (discussing Veteran's in-service respiratory conditions and opining that they are unrelated to subsequent development of OSA). Generally, the Board would therefore proceed to adjudicate the Veteran's claim on the evidence of record. However, the Veteran has also challenged the January 2021 VA examiner's competency to evaluate OSA. See February 2021 Correspondence at 2; see also January 2021 VA Medical Opinion at 4 (identifying the examiner as a general medical practitioner with a specialization in obstetrics and gynecology). The Board notes that "once the veteran raises a challenge to the competency of the medical examiner, the presumption [of competency] has no further effect, and, just as in typical litigation, the side presenting the expert... must satisfy its burden of persuasion as to the examiner's qualifications." See Francway v. Wilkie, 940 F.3d 1304, 1309 (2019). "The Board must then make factual findings regarding the qualifications and provide reasons and bases for concluding whether or not the medical examiner was competent to provide the opinion." Id. It is plausible to the Board that the January 2021 examiner, in his capacity as a general medical practitioner, is competent to opine on a wide variety of medical conditions. While the Veteran asserts that "a pulmonologist or sleep specialist would be a more appropriate medical professional to make a determination on the service connection of... sleep apnea[,]" he offers no competent medical rationale to support the inference that OSA is beyond a general medical practitioner's expertise. See February 2021 Correspondence at 2; see also, e.g., 38 C.F.R. § 4.85(a) (providing example of condition requiring specialist's evaluation). However, the Board cannot make a determination that the January 2021 examiner is in fact competent without first verifying his training to conduct examinations for VA compensation purposes. Francway, 940 F.3d at 1309. The Board is also mindful of regulatory constraints on its ability to remand for further development, which "should not be undertaken when [the] evidence present is sufficient for this determination." 38 C.F.R. § 3.304(c). The Board has therefore considered whether the available evidence of record is sufficient to grant the Veteran's claim outright. The Veteran asserts that a December 2014 disability benefits questionnaire (DBQ) from his private treating physician "establishes that [the] Veteran's sleep apnea originated while [he] was in service." See August 2020 Correspondence at 2. Without making a final determination as to the Veteran's credibility at this time, the Board notes that this assertion is contradicted by the plain text of the December 2014 DBQ, which notes that the Veteran "was seen initially [in August 2013]" and, at that time, asserted "20 years [of] severe sleepiness[.]" See December 2014 DBQ at 1; see also November 2020 Medical Treatment Records at 5 (providing August 2013 treatment note). In other words, the December 2014 DBQ presents the Veteran's assertion of August 2013, not independent corroboration of that assertion. The Board further notes that the Veteran's private medical records reflect ongoing treatment for this condition from August 2013 and that the Veteran asserted in April 2015 that he had mentioned symptoms of fatigue to medical personnel during his active-duty service. See April 2015 Medical Treatment Records; see also April 2015 Correspondence; see also September 2019 VA Examination Report at 2 (reflecting Veteran's contemporaneous assertion that his symptoms began in 1995). The Board notes that the Veteran's STRs do not corroborate his April 2015 assertion, but is also mindful that portions of his STR are no longer available. See March 2015 STR; cf. December 2010 VA Memorandum. However, the Veteran has also provided no explanation as to why he did not seek treatment for this condition prior to August 2013 if its symptoms were ongoing as he asserts. The Board notes that evidence of a prolonged period without medical complaint may be considered along with all other evidence of record. See Maxson v. Gober, 230 F.3d 1330 (2000). Without making a final determination as to the Veteran's credibility at this time, the Board is not currently prepared to find that the available evidence of record is sufficient for the assignment of service connection. 38 C.F.R. § 3.304(c). This matter is therefore REMANDED for the following action: Obtain the January 2021 VA examiner's curriculum vitae, including credentials for all training completed for purposes of conducting VA examinations. Associate these records with the Veteran's claims file. Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Blore, 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.