Citation Nr: 21041328
Decision Date: 07/08/21	Archive Date: 07/08/21

DOCKET NO. 16-54 810
DATE: July 8, 2021

REMANDED

Entitlement to service connection for sleep apnea is remanded. 

REASONS FOR REMAND

The Veteran served honorably in the Army from June 1975 to June 1979. He then served in the United States Army Reserve, from which he retired in October 2008.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for sleep apnea. 

In March 2019 the above claim was remanded for private treatment records from Dr. P. Lin and Dr. K. Hara. In April 2019, complying with the Board remand instructions the RO sent a subsequent development letter. The Veteran responded with releases for Dr. M. Kuo and Dr. K. Hara. The RO obtained these records. Thus, there has been substantial compliance with the Board remand instructions. 

Upon review another remand is necessary for a new medical opinion. As the October 2016 negative nexus opinion is predicated on the finding that no matter the lay evidence a diagnosis of sleep apnea could not be made without confirmatory in-service sleep study testing and an in-service diagnosis established. The Court has held that such a rationalization is erroneous and cannot serve as the basis for a denial. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006).

The matters are REMANDED for the following action:

1. Obtain a new medical opinion from an appropriate VA examiner. A copy of the REMAND and the claims file must be provided to and reviewed by the VA examiner. 

The VA examiner must render an opinion as to whether it is at least as likely as not (50% or more probability) that the Veteran's sleep apnea is related to active service. 

In rendering a medical opinion, the VA examiner must specifically discuss the likelihood that the Veteran's sleep apnea has been present since service notwithstanding the absence of a diagnosis until December 2015. In this regard, the testimony from the Veteran's spouse and roommate reflects that during service the Veteran would snore, wake up 3 to 4 times a night, wake up choking, stop breathing, gasp for air, experience fatigue, and experience sleepiness. 

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In light of this evidence and based on any medical knowledge regarding the typical development and progression of sleep apnea, the examiner should consider whether the Veteran incurred sleep apnea during his active duty service that went undiagnosed until December 2015.

 

 

SARAH B. RICHMOND

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Smith, 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.