Citation Nr: 21031916 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 18-00 680 DATE: May 25, 2021 REMANDED The issue of severance of service connection for mild obstructive sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1977 to June 1979, November 2001 to April 2003, January 2004 to September 2004 and April 2007 to August 2007 with additional service in the Air National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision issued by the RO. In February 2020 decision, the Board determined that the original grant of service connection for mild obstructive sleep apnea was clear and unmistakable error; the severance of service connection was proper; and, denied the Veteran's appeal for restoration of service connection for mild obstructive sleep apnea. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In December 2020, the Court granted the parties Joint Motion for Remand (JMR), vacated the Board's February 2020 decision, and remanded the claim on appeal to the Board for further development and consideration. The parties agreed that remand was required because the Board erred by relying on an inadequate VA examination in adjudicating the matter on appeal. The parties noted that the December 2008 VA examination diagnosed mild obstructive sleep apnea but did not provide an etiology opinion. In addition, the parties noted that the Board (in the February 2020 decision) relied on that December 2008 VA examination and determined that there was no other "indication that mild obstructive sleep apnea might be related to service on any other basis." The parties agreed that the Board relied on an inadequate medical opinion and that on remand the Board must obtain a new VA examination with etiology opinion that explains whether the Veteran's obstructive sleep apnea is related to service. 1. Whether the severance of service connection for mild obstructive sleep apnea was proper is remanded. The Board has determined that additional development is necessary, and these matters are REMANDED for the following: 1. BACKGROUND FOR THE RO ADJUDICATOR: The Veteran contends that his obstructive sleep apnea was diagnosed within one year of his discharge from service and is therefore causally related to a period of his active service. As explained in the December 2020 JMR, the parties agreed that the December 2008 VA examination was inadequate for adjudicating the matter on appeal. Given the clear instruction of the JMR, the Board finds additional VA examination is warranted to address the etiology of the Veteran's obstructive sleep apnea. THE REMAND DIRECTIVES FOLLOW. 2. Schedule the Veteran for a VA examination to address the nature and likely etiology of the obstructive sleep apnea. The claims file must be reviewed by the examiner. All indicated tests and studies should be performed and the clinical findings should be reported in detail. A comprehensive clinical history should be obtained, to include a discussion of the Veteran's documented medical history and assertions. The Veteran asserts that his obstructive sleep apnea was diagnosed within one year of his discharge from service and thus is etiologically related to a period of his service. After reviewing the entire record, the examiner should provide an opinion with supporting explanations as to the following: Does the Veteran have current obstructive sleep apnea that had onset during a period of service due to event or incident incurred therein? THE EXAMINER MUST CONSIDER AND EXPLAIN WHETHER THE VETERAN'S ACCOUNT OF THE DEVELOPMENT OF THE DISORDER IS CONSISTENT WITH THE MEDICAL EVIDENCE AND THE EXAMINER'S KNOWLEDGE AND PRACTICE EXPERIENCE, ACCOUNTING FOR FACTS AND CIRCUMSTANCES SPECIFIC TO THE VETERAN. As indicated above, the examiner must review the record in conjunction with rendering the requested opinion; however, his/her attention is drawn to the following: *An October 2007 VA treatment record documents assessment of, in pertinent part, sleep apnea. *A June 2008 VA sleep study findings were consistent with a diagnosis of mild obstructive sleep apnea/hypopnea with moderate sleep fragmentation. *December 2008 Report of VA respiratory diseases examination documents diagnosis of mild obstructive sleep apnea. The Veteran complained of hypersomnolence and increased snoring since his return from Afghanistan. He reported that he received treatment in the pulmonary clinic and was diagnosed with sleep apnea and started on a C-PAP machine. THE EXAMINER IS ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED AND/OR THE EXAMINER HAS EXPERTISE IS NOT SUFFICIENT TO FIND THAT THE EXAMINATION IS SUFFICIENT. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Jackson 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.