Citation Nr: 21042283 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 18-34 753 DATE: July 12, 2021 REMANDED Service connection for obstructive sleep apnea is remanded. REASONS FOR REMAND The Veteran served on multiple periods of active service between May 1996 and January 2013. This matter comes to the Board of Veterans' Appeals (Board) on appeal of a VA Regional Office (RO) rating decision dated in December 2017. In December 2019, the Veteran testified in a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is included in the electronic record and has been reviewed. The matter was previously before the Board in March 2020 when remanded for a VA examination. Service connection for obstructive sleep apnea is remanded. Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the issue of service connection for obstructive sleep apnea. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). In December 2019, the Veteran testified to not knowing what sleep apnea was when completing medical history forms during service, that fellow service and spouse members complained about snoring and stopping breathing while sleeping that began during service. The Veteran's spouse and fellow service members had also submitted statements about the Veteran's snoring and stopping breathing that began during service in November 2017. The Veteran denied snoring problems prior to service, but the problems that began in service had continued to the present. The undersigned Veterans Law Judge found the Veteran's December 2019 testimony truthful and credible. In March 2020 Board remand order directed the RO to have the examiner "consider Veteran's statement during the Board hearing that he experienced symptoms during service, and consider the November 2017 statements of record from his wife and fellow soldier who attest to symptoms during service" and "note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology." The Board further directed that "If there is a medical basis to support or doubt the history provided by the Veteran and the other lay witnesses, the examiner should indicate this in the examination report and provide a rationale for that determination." However, a May 2020 VA medical opinion did not mention or reflect consideration of any lay statements, as required. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Dalton v. Nicholson, 21 Vet. App. 23 (2007). An addendum VA medical opinion addressing these lay statements are warranted. The matter is REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the claim to the extent possible, to include any outstanding VA treatment records. All records/responses received must be associated with the electronic claims file. 2. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's obstructive sleep apnea. The examiner must review the claims file, including a copy of the November 2017 third-party statements, December 2019 Board hearing testimony, and this remand order. After reviewing the claims file, interviewing the Veteran, and examining him, the examiner should answer the following questions: (a.) Is it at least as likely as not (i.e., probability of 50 percent or greater) that OSA had its onset during service, or is related to a disease, event, or injury during service? In answering (a), consider Veteran's statement during the Board hearing about symptoms during service, and consider the November 2017 statements of record from the Veteran's spouse and fellow soldier who attest to symptoms during service. (b.) Is it at least as likely as not (i.e., probability of 50 percent or greater) that OSA is due to or caused by service-connected disability? (c.) If the response to (b) is negative, is it at least as likely as not that OSA has been aggravated (i.e., permanently, or temporarily worsened beyond the natural progress) by service-connected disability? In answering (b) or (c), discuss the relevance if any that the September 2017 sleep study was prompted by treatment for service-connected psychiatric disability. Please explain in detail any opinion provided and the supporting rationale. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. In rendering the requested opinion, the examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran and the other lay witnesses, the examiner should indicate this in the examination report and provide a rationale for that determination. (Continued on the next page) In providing the requested opinion, consider the Veteran's description of in-service and post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported symptoms in service and thereafter represented the onset of current disability, this should be noted. Stated another way, do the Veteran's reports about symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? Provide a rationale to support the opinion. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that question. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James Hekel 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.