Citation Nr: 21042613 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 15-35 406 DATE: July 13, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty from July 2001 to October 2001, from February 2003 to June 2003, and from October 2004 to January 2006. In June 2019, the Board of Veterans' Appeals (Board) remanded the claim for additional development. Entitlement to service connection for sleep apnea is remanded. The June 2019 Board decision remanded the claim for a VA examination to determine the nature and etiology of the Veteran's sleep apnea. That decision noted that the Veteran was diagnosed with sleep apnea, and reported at a January 2019 hearing that he had trouble sleeping during service with symptoms that included waking up a lot at night, snoring, and being tired during the day and wanting to take a nap; he additionally reported that his symptoms continued since service and have gotten worse. At an October 2019 VA examination, the examiner failed to diagnose the Veteran with sleep apnea. The Board finds this examination inadequate as the Veteran's post-service treatment records clearly diagnose him with sleep apnea; indeed, the June 2019 Board decision already conceded that he was diagnosed with sleep apnea dating back to at least 2013. There are also May 2021 VA addendum medical opinions associated with the claims file. Namely, the VA examiner opined, in relevant part, that the Veteran's sleep apnea was not directly caused by service as he "found no record of chronic or recurrent sleep problems." The examiner continued that the Veteran's service connection claim was "missing elements of chronicity." The Board notes that sleep apnea is not listed among the disabilities entitled to service connection based on chronicity. See 38 C.F.R. § 3.309(a). Nonetheless, the Veteran is entitled to pursue his claim on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Here, the VA examiner's reliance on the lack of chronicity following separation renders the May 2021 VA examination inadequate, especially considering that the Veteran is ineligible for service connection on that basis. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the term "chronic disease" in 38 C.F.R. § 3.303(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). Lastly, the Board notes that a May 2021 VA examiner opined that the Veteran's sleep apnea clearly and unmistakably pre-existed service. However, the Board disregards this rationale and finds it inadequate as it does not reflect the medical evidence in the record. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). There is simply no evidence in the claims file supporting a conclusion that the Veteran's sleep apnea pre-existed service; the Veteran has not alleged it as such. This theory of entitlement is therefore irrelevant to the current claim. Accordingly, a remand is necessary to obtain an addendum VA medical opinion. The matters are REMANDED for the following action: Obtain an addendum VA medical opinion to determine the nature and etiology of the Veteran's sleep apnea. If another VA examination (or telehealth interview, review of the record, or similar action, if in-person examination is not feasible) is deemed necessary, then one must be obtained. The examiner must offer a well reasoned opinion addressing whether it is at least as likely as not that the Veteran's sleep apnea began in service or is otherwise etiologically linked to service. The examiner must discuss the Veteran's testimony that he had trouble sleeping during service with symptoms that included waking up a lot at night, snoring, and being tired during the day and wanting to take a nap, and that these symptoms continued after separation. Miller v. Wilkie, 32 Vet. App. 249 (2020). The examiner is additionally reminded that while sleep apnea is not listed amongst the disabilities viewed as chronic, 38 C.F.R. § 3.309(a), the Veteran is not precluded from establishing service connection on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Upon remand, if the VA examiner finds that the Veteran's sleep apnea is not related to service, such negative nexus opinion cannot rely solely on the rationale that the Veteran's sleep apnea was not chronic in service or shortly thereafter. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Finelli, 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.