Citation Nr: 22020003 Decision Date: 04/04/22 Archive Date: 04/04/22 DOCKET NO. 18-22 588 DATE: April 4, 2022 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. REASONS FOR REMAND The Veteran served in the United States Army from January 1980 to January 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2017 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in November 2021, and a transcript of this hearing is associated with the claims file. In January 2022, the Veteran submitted a VA Form 526-EZ, Application for Disability Compensation and Related Benefits, in which he listed a claim for service connection for sleep apnea. However, the Veteran already has a claim for service connection for sleep apnea on appeal before the Board. 1. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Moreover, for such chronic diseases, an alternative method of establishing the second and third Shedden elements is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2014). Here, as obstructive sleep apnea is not one of the enumerated disorders listed under 38 C.F.R. § 3.309(a), application of 38 C.F.R. § 3.303(b) is not warranted. Nevertheless, evidence of continuous symptoms since active duty is still a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a). The Veteran's service treatment records are silent with respect to a diagnosis of OSA or any symptoms associated with OSA. The Veteran's VA treatment records show that he was diagnosed with OSA in March 2017. In his November 2021 hearing testimony, the Veteran testified that his OSA symptoms began while he was in active service. He stated that his roommates used to complain about how loudly and often he snored when sleeping. He also had issues with waking up during the night while in service. However, he never went to sick call or sought any treatment during service because he was young and did not realize he had serious symptoms. The Board notes the Veteran has not been afforded a VA examination. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims indicated that there was a four-part test to determine whether an examination was necessary under 38 C.F.R. § 3.159(c)(4). Id. at 81. Under this test, VA will provide a medical examination or obtain a medical opinion where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence to make a decision on the claim. Id.; see also 38 C.F.R. § 3.159(c)(4). The Veteran has a current diagnosis of OSA, and he has provided testimony that he began experiencing symptoms associated with OSA, such as snoring and waking up during the night, while in service. Additionally, he testified that he has experienced these symptoms continuously since service, even though he did not seek treatment until many years later. However, while the Veteran has provided lay statements indicating a possible connection between his current OSA and service, these statements cannot be used to provide a nexus opinion. Although he is competent to report symptoms and events experienced, the Veteran is not competent to provide a nexus opinion because such is a complicated medical issue that requires medical knowledge and expertise the Veteran has not been shown to possess. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37 (2006). The current evidence of record is insufficient for the Board to make a determination on service connection for OSA. As such, the Board finds that a VA medical opinion on this matter is necessary. Accordingly, this matter is REMANDED for the following action: Obtain a medical opinion from a qualified examiner in order to determine the nature and etiology of the Veteran's obstructive sleep apnea. The need for an in-person or telehealth examination is left to the discretion of the examiner. The examiner must thoroughly review the claims file and provide thorough discussion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's obstructive sleep apnea began in or is otherwise related to his service. The examiner must specifically address the Veteran's lay statements regarding snoring and issues with sleeping during service, as well as his report of continuous symptoms since service, in the context of any opinion. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gabrielle Ongies, 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.