Citation Nr: 22017263 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 20-17 344 DATE: March 24, 2022 REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1965 to July 1967. He served in the Republic of Vietnam from January 1966 to July 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2018 rating decision. The case was remanded for additional development in September 2020, February 2021, and August 2021. 1. Entitlement to service connection for obstructive sleep apnea is remanded. In its September 2020 remand the Board, in pertinent part, requested that the Veteran be scheduled for a VA examination (which may include a telemedicine appointment) by a VA medical expert with the appropriate training and expertise. Although a VA examination report was provided by a nurse practitioner in September 2020 based upon a review of the record, in its February 2021 remand the Board interpreted the prior remand directive as requiring an in-person or telemedicine examination. Additional VA medical opinions were obtained from a nurse practitioner in March 2021 and April 2021 and from a physician with identified specialties in general practice and obstetrics and gynecology in September 2021 based upon a review of the record, but again in its August 2021 and December 2021 remands the Board found that an in-person or telemedicine examination was required. A VA report added to the record in January 2021 noted a scheduled VA examination was cancelled at the Veteran's request. No information as to cause for the Veteran's cancellation is of record. The Board notes that when entitlement to a benefit cannot be established without a current VA examination or reexamination and a claimant fails to report for a scheduled medical examination, without good cause, an original compensation claim shall be rated based upon the evidence of record. 38 C.F.R. § 3.655. VA must consider both (1) whether the examination was necessary to establish entitlement to the benefit sought, and (2) whether the claimant lacked good cause to miss the scheduled examination. Turk v. Peake, 21 Vet. App. 565, 569 (2008). In this case, while it is clear that the Veteran cancelled his most recently scheduled VA examination without indication of good cause, the evidence as to whether an in-person or telemedicine examination is required to establish entitlement to the benefit sought is not clear. The prior Board remands did not address why it was necessary that in-person or telemedicine examinations be obtained nor did the Agency of Original Jurisdiction (AOJ) explain why such examinations could not be obtained or were not medically necessary or advisable. In a February 2022 brief in support of the appeal the Veteran's service representative raised an additional theory for secondary service connection as due to type II diabetes mellitus and provided statements that may be reasonably construed as a challenge to the medical expertise of the prior VA examiners. Under VA law, if the veteran challenges the competence of the medical examiner, VA must "satisfy its burden of persuasion as to the examiner's qualifications." Francway v. Wilkie, 940 F.3d 1304, 1307 (Fed. Cir. 2019). It is also significant to note that references to medical studies and medical literature purported to support the Veteran's secondary service connection claims were provided by the service representative in briefs dated in February 2021 and February 2022. The references provided in February 2022 were noted, in part, to be more current than those addressed by the September 2021 VA examiner. In light of the new theory of entitlement and additional medical literature references provided in February 2022, the Board finds that additional development is required for an adequate determination. The development must include an opinion by a "VA medical expert with the appropriate training and expertise" with documentation in the record identifying the examiner's training and expertise as to obstructive sleep apnea issues. That examiner must also address whether or not adequate opinions can be provided as to the Veteran's claims without in-person or telemedicine examinations. If such opinions and/or examinations cannot be obtained or are not medically necessary or advisable, a full explanation must be provided for the record. Prior to any examination, up-to-date VA treatment records should be obtained. The matter is REMANDED for the following action: 1. Obtain all pertinent VA medical records not yet associated with the appellate record. 2. Schedule the Veteran for opinions by a VA medical expert (with documentation in the record identifying training and expertise) as to whether it is at least as likely as not (50 percent probability or greater) that he has obstructive sleep apnea that: (a.) had its onset in service, including based upon consideration of credible lay evidence such as the November 2019 statement from the Veteran's spouse reporting that he gasped for air during sleep after returning from Vietnam, (b.) is etiologically related to his active service, including as due to his exposure to tactical herbicide in Vietnam as conceded by VA, (c.) was caused by a service-connected disability, such as a nightmare disorder (previously addressed as posttraumatic stress disorder) or type II diabetes mellitus, or (d.) underwent an incremental increase in disability, regardless of its permanence, due to a service-connected disability. The examiner must address whether or not adequate opinions can be provided as to the Veteran's claims without in-person or telemedicine examinations. The examiner must also address the references to medical studies and medical literature provided by in briefs dated in February 2021 and February 2022. If such opinions and/or examinations cannot be obtained or are not medically necessary or advisable, a full explanation must be provided for the record. The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any "incremental increase in disability" need not be permanent. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Douglas 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.