Citation Nr: 22013389
Decision Date: 03/09/22	Archive Date: 03/09/22

DOCKET NO. 18-46 537
DATE: March 9, 2022

REMANDED

Entitlement to service connection for obstructive sleep apnea is remanded.

REASONS FOR REMAND

The Veteran had active service from July 2008 to July 2012.

This appeal comes before the Board of Veterans' Appeals(Board) from an April 2018 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran testified at a Virtual Board hearing before the undersigned Veterans Law Judge in October 2020.  A transcript is of record.

1. Entitlement to service connection for obstructive sleep apnea is remanded.

The Board finds that remand is required for additional development.  This issue was previously remanded to obtain an etiology opinion and a VA opinion was provided in December 2021.  In the opinion, the VA examiner determined that the Veteran's sleep apnea was less likely than not related to service.  The examiner noted that the Veteran's STRs were silent for chronic complaint or diagnosis of a sleep apnea condition.  The examiner stated that the Veteran was diagnosed with sleep apnea in 2016 and there was insufficient objective evidence in the STRs to establish a relationship between the Veteran's sleep apnea and service. 

The Board finds this opinion to be inadequate as it relied largely on lack of documentation in service to deny nexus.  No other medical rationale or support was provided to support the VA examiner's opinion.  The Board notes that relying on lack of documentation in STRs to support the negative nexus opinion is particularly inadequate in this case as a July 2013 memorandum indicated that the majority of the Veteran's service records were unavailable for review.  Given the missing STRs, VA has a heightened duty to assist the Veteran in developing his claim.  O'Hare v. Derwinski, 1 Vet. App. 365 (1991).

The examiner did not address the Veteran's lay statements from the October 2020 hearing.  The Veteran stated that he had an erratic schedule in service which constantly disrupted his sleeping pattern.  He also noted that his peers in the Army noted his snoring in service.  On remand, the examiner must address the Veteran's competent and credible lay statements regarding symptomatology in service. 

The matters are REMANDED for the following action:

1. Obtain an opinion to determine the etiology of the Veteran's obstructive sleep apnea.  The entire claims file must be made available to and be reviewed by the examiner. 

The examiner is asked to provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the obstructive sleep apnea had onset in, or is otherwise related to, active military service.

  

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An explanation for all opinions expressed should be provided.  The VA examiner is reminded that he or she may not rely on a lack of medical documentation as the sole rationale in rendering the opinion.  The Veteran's credible lay statements of record considering symptomatology in service must be addressed.

 

 

H.M. WALKER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	AK

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.