Citation Nr: 21040290 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 10-08 458 DATE: July 3, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a bilateral knee disability is remanded. Entitlement to service connection for bilateral lower extremity sciatica is remanded. REASONS FOR REMAND 1. Sleep Apnea In December 2019, the Board denied the Veteran's claim for sleep apnea. She appealed to the United States Court of Appeals for Veterans Claims (Court). In February 2021, the Court granted a Joint Motion for Partial Vacatur and Remand (JMR) filed by the parties to the appeal (the Veteran, through an attorney, and representatives from VA General Counsel), thereby vacating the Board's decision and remanding the matter for readjudication. The Court noted that the Board did not adequately consider the lay statements of record since it had not assigned them negative credibility. Consequently, a new VA examination is necessary that fully considers the lay evidence of record. 2. Bilateral Knee Disability In May 2020, the Board denied the Veteran's service connection claim for bilateral knee disability and appealed to the Court. In May 2021, the Court granted a JMR and the parties agreed that the Veteran's lay statements concerning her bilateral knee disability were not fully considered. The parties acknowledged the January 2020 VA examiner did consider the lay statements, but it was unclear if the examiner specifically considered the Veteran's report of self-care of her knee since service. Therefore, a new VA examination is needed. 3. Bilateral Lower Extremity Sciatica The Veteran's service connection claim for bilateral lower extremity sciatica was also denied in a May 2020 Board decision. The Veteran appealed this claim which was also addressed in the May 2021 JMR. The Court determined that the Board only considered secondary service connection and not direct service connection for this disability. The Veteran testified that her sciatica was related to her in-service forklift injury. Consequently, a new VA examination is needed. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate clinician for her sleep apnea. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea began during active service or is related to an incident of service. For the purposes of this remand only, and for the limited purpose of conducting the examination and providing a medical opinion, the examiner should assume that the lay statements of record discussing her in service snoring during basic training, daytime somnolence, and day time fatigue are true. The Veteran's ex-spouse noted that, while in service, the Veteran stopped breathing at times while sleeping and he had to wake her up. The lay statements noted not only that these issues started in service but have persisted since. If there is a medical reason to doubt its veracity, the examiner should explain why the lay statements are inconsistent with the principles of medical science and/or the evidence in this case. The examiner should specifically address the lay statements in their opinion. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Schedule the Veteran for an examination with an appropriate clinician for her bilateral knee disability. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must provide an opinion as to whether it is at least as likely as not that the Veteran's bilateral knee disability began during active service or is related to an incident of service, including her forklift accident. For the purposes of this remand only, and for the limited purpose of conducting the examination and providing a medical opinion, the examiner should assume that the Veteran's lay statements that she self-treated her knees since service as true. If there is a medical reason to doubt its veracity, the examiner should explain why the lay statements are inconsistent with the principles of medical science and/or the evidence in this case. The examiner should specifically address the lay statements in their opinion. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. Schedule the Veteran for an examination with an appropriate clinician for her bilateral lower extremity sciatica. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must provide an opinion as to whether it is at least as likely as not that the Veteran's bilateral lower extremity sciatica disability began during active service or is related to an incident of service, including her forklift accident. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 4. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Brunot, 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.