Citation Nr: 22015172 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 16-35 704 DATE: March 16, 2022 REMANDED Entitlement to service connection for sleep disordered breathing (sleep apnea) is remanded. REASONS FOR REMAND The appellant is a veteran (the Veteran) who had active duty service from December 1998 to December 2002, and from January 2009 to June 2009. The Veteran had additional periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) with the National Guard. This appeal comes before the Board of Veterans' Appeals (Board) from an August 2021 Order of the United States Court of Appeals for Veterans' Claims (Veterans Court). The appeal originated from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In November 2016, the Veteran presented testimony at a Board hearing, chaired by the undersigned Veterans Law Judge sitting at the RO. At the Board hearing, the Veteran was informed of the basis for the RO's denial of his claims, and he was informed of the information and evidence necessary to substantiate each claim. 38 C.F.R. § 3.103. A transcript of the hearing is associated with the claims file. In a December 2018 decision, the Board denied service connection for sleep apnea. The Veteran appealed that decision to the Veterans Court. In a December 2019 Order, pursuant to a Joint Motion for Remand, the Veterans Court vacated the Board's decision in part, and remanded this issue to the Board for additional development consistent with the Joint Motion. In May 2020, the Board remanded this issue for additional evidentiary development. In an October 2020 decision, the Board again denied service connection for sleep apnea. The Veteran appealed that decision to the Veterans Court. In an August 2021 Order, pursuant to a Joint Motion for Remand, the Veterans Court vacated the Board's decision and remanded this issue to the Board for additional development consistent with the Joint Motion. Entitlement to service connection for sleep apnea. The Veteran was afforded a VA medical examination in June 2020. The examiner gave a negative nexus opinion, stating: Veteran's AD time in 2009 ended in 06/2009 and first dx of OSA was in 2011 which even if giving credit for Reserves time is a long time after his time in Service. The presence of sleep apnea with the amount of time in Service vs. out of Service is NOT in favor of a diagnosis of OSA beginning or aggravated in Service. The parties to the Joint Motion noted that the Veteran was diagnosed with sleep apnea in 2010, not 2011, and that the examiner's opinion was thus predicated on an inaccurate factual premise, citing a November 2010 private medical record. Additionally, the examiner failed to provide any medical rationale as to why the time between the end of the Veteran's service and the formal diagnosis of sleep apnea supported a negative nexus opinion. Finally, the examiner noted a May 2009 medical report indicating that the Veteran did not snore in service. However, a contemporaneous July 2009 line of duty determination stated that the Veteran received complaints from roommates that he "snores and coughs a lot [sic] while he sleeps." The parties to the Joint Motion agreed that, on remand, the Board shall obtain a new VA medical opinion which must offer clear conclusions supported by adequate medical reasoning, and further must address the relevant evidence reporting snoring and coughing in service. The Board is bound by the findings contained in the Joint Motion, as adopted by the Veterans Court. See Chisem v. Gober, 10 Vet. App. 526, 527-8 (1997) (under the "law of the case" doctrine, appellate courts generally will not review or reconsider issues that have already been decided in a previous appeal of the same case, and therefore, Board is not free to do anything contrary to the Court's prior action with respect to the same claim). Accordingly, the matter is REMANDED for the following action: 1. Arrange for an appropriate VA opinion to determine the nature and etiology of the Veteran's sleep apnea. The relevant documents in the claims file should be made available to the VA examiner. The examiner is asked to accept as fact the findings of the parties that the Veteran was first diagnosed with sleep apnea in 2010; a July 2009 line of duty determination stated that the Veteran received complaints from roommates that he "snores and coughs a lot [sic] while he sleeps." It was suggested that he could have sleep apnea. However, a follow up at the Kelly Clinic said it was more likely that his snoring was due to allergies. The VA examiner is requested to offer an opinion as to whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that sleep apnea began in service, or is otherwise related to service. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but that the medical evidence for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation or worsening as it is to find against causation or worsening. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, the examiner is asked to please provide complete explanations stating why this is so. In so doing, the examiner is asked to explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that the examiner has exhausted the limits of current medical knowledge in providing an answer to that particular question. 2. Readjudicate the remanded claim. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Cramp 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.