Citation Nr: A22022355 Decision Date: 11/06/22 Archive Date: 11/06/22 DOCKET NO. 210312-146098 DATE: November 6, 2022 REMANDED Service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1964 to December 1984. The case is on appeal from a January 2021 rating decision. The rating decision on appeal constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. Service connection for sleep apnea was previously denied in an August 2019 rating decision. The January 2021 rating decision on appeal found that new and relevant evidence had been received to readjudicate the claim. This is a favorable finding by the agency of original jurisdiction (AOJ). As there is not clear and unmistakable error in this finding, it is binding on the Board. The Board will therefore proceed to the address the claim without considering whether new and relevant evidence has been received. See 38 U.S.C. § 5104A; 38 C.F.R. § 3.104(c). In his March 2021 VA Form 10182, Decision Review Request: Board Appeal, notice of disagreement (NOD), the Veteran elected the Hearing docket. The Veteran testified before a Veterans Law Judge (VLJ) of the Board in May 2022. Therefore, the Board may only consider the evidence of record at the time of the AOJ decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is remanding the claim for further development, this additional evidence will be considered by the RO in the adjudication of the claim. 1. Service connection for sleep apnea is remanded. This issue is remanded for a VA opinion. The Veteran contends that his sleep apnea condition is either directly due to service or is secondary to his service-connected sinusitis, diabetes mellitus type II, and/or hypertension. Board Hr'g Tr. 2. In the January 2021 rating decision on appeal, the AOJ made the following favorable findings of fact: You have been diagnosed with a disability. Records from Virtuox Home Sleep Testing dated May 10, 2020[,] found mild obstructive sleep apnea. The Board cannot make a fully-informed decision on the issue because no VA examiner has opined whether the Veteran may have sleep apnea due to service or a service-connected disability. This remand is needed to correct a duty to assist error that occurred prior to the rating decision on appeal. The matters are REMANDED for the following action: 1. Obtain an opinion from an appropriate clinician regarding the Veteran's sleep apnea. An in-person examination of the Veteran should be arranged if determined necessary by the appointed examiner. The examiner is asked to provide a response to the following: (a.) Is the condition at least as likely as not related to service? (b.) Was the condition at least as likely as not caused by (i.e., proximately due to) a different medical condition? (c.) Has the condition been at least as likely as not aggravated (i.e., worsened beyond its natural progression) by a different medical condition? The examiner should understand "aggravation" to mean that there was a worsening beyond the natural progression of the disease. A "permanent worsening" standard is not applicable, so any incremental increase in disability should be considered aggravation. If it is determined that the condition was either caused or aggravated by a different medical condition, the examiner is asked to identify the primary medical condition. In answering these questions, the examiner is asked to consider the statements from the Veteran and his spouse regarding his history of symptoms during and since service. The examiner is asked to explain why their statements make it more or less likely that the current condition is related to service or secondary to a service-connected disability. If indicated, it should be explained whether there is a **medical** reason to believe that the Veteran and his wife's recollection of his symptoms during and after service may be inaccurate or not medically supported as the onset or cause of his current diagnosis. Stated another way, do the lay reports about his symptoms align with how the currently diagnosed condition is known to develop, or are the lay reports generally inconsistent with medical knowledge or implausible? The examiner should not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Bosely, 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.