Entitlement to service connection for obstructive sleep apnea is remanded.

Citation Nr: A26069957 Decision Date: 07/30/26 Archive Date: 07/30/26 DOCKET NO. 211231-208451 DATE: July 30, 2026 REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1999 to August 2009. The rating decision on appeal was issued in September 2021 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the December 13, 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on July 10, 2025. A transcript is of record. Therefore, the Board may only consider the evidence of record at the time of the September 2021 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or her representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302 (a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. However, because the Board is remanding the claim, any evidence the Board could not consider will be considered by the AOJ in the adjudication of this claim. 38 C.F.R. § 3.103 (c)(2)(ii). 1. Entitlement to service connection for obstructive sleep apnea is remanded. The issue of entitlement to service connection for obstructive sleep apnea is remanded to correct a duty to assist error that occurred prior to the September 2021 rating decision on appeal. First, military personnel records clearly show that the Veteran served in Iraq from October 2005 to October 2006. As such, the Board finds that the Veteran participated in a toxic exposure risk activity (TERA). However, the record does not have an Individual Longitudinal Exposure Record (ILER) entry for the Veteran or a TERA medical opinion. As such, the Board finds that a remand is warranted to associate an ILER entry and obtain a TERA medical opinion. Second, the Board finds that the August 2021 VA medical opinion is inadequate as it did not address whether the etiology and pathophysiology of the Veteran's sleep apnea were at least partially understood. As noted, the Veteran has had service in Iraq. In Stewart v. Wilkie, the Court held that an illness was a medically unexplained chronic multi symptom illness (MUCMI) where either the etiology or the pathophysiology of the illness was inconclusive and was not a MUCMI where both the etiology and the pathophysiology of the illness were partially understood. 30 Vet. App. 383 (2018). The Court also concluded that the determination of whether an illness is "medically unexplained" is particular to the claimant in each case. Id. at 391. As such, a remand is warranted to obtain a supplemental opinion. Third, the August 2021 VA medical opinion is also inadequate because it did not address the Veteran's in-service issues with sleeping and her continuous issues with sleeping after service. Further, the examiner also did not address whether the Veteran's sleep apnea was secondary to her service-connected disabilities, such as posttraumatic stress disorder. This is particularly significant as it has been consistently found that a symptom of the Veteran's PTSD includes chronic sleep impairment. As such, a remand is warranted to obtain a supplemental opinion. The matters are REMANDED for the following action: 1. Associate an ILER with the record and issue a TERA memorandum. 2. Then, obtain a supplemental VA opinion from an appropriately qualified examiner regarding the nature and etiology of the Veteran's obstructive sleep apnea. Only if deemed necessary to provide an opinion, should the Veteran be afforded a new VA examination. Provide the claims file, including a copy of this REMAND, to the examiner for review. After review of the claims file, the examiner should address the following: (a) Is the etiology of the Veteran's obstructive sleep apnea (1) inconclusive, (2) partially understood, or (3) fully understood? This determination must be based on the Veteran's specific case and cannot be based on the etiology of the disease or disability population as a whole. (b) Is the pathophysiology of the Veteran's obstructive sleep apnea (1) inconclusive, (2) partially understood, or (3) fully understood? This determination must be based on the Veteran's specific case and cannot be based on the pathophysiology of the disease or disability population as a whole. (c) If both the etiology and pathophysiology are partially understood or fully understood, then address whether the Veteran's obstructive sleep apnea was incurred in, or otherwise related to, her active service, to include her hazardous exposures during her deployment to Southwest Asia, to include the total combined exposure to TERA through all applicable deployments, as well as the synergistic and combined effect of all TERA. In doing so, the examiner should address the October 2006 post-deployment health assessment in which the Veteran reported still feeling tired after sleeping, the June 2009 service treatment showing complaint of insomnia and lack of sleep, and post-service VA treatment records showing continued difficulties sleeping. (d) If both the etiology and pathophysiology are partially understood or fully understood, then address whether the Veteran's obstructive sleep apnea was due to OR aggravated by her service-connected disabilities, to include PTSD. In doing so, the examiner should address the fact that chronic sleep impairment has been found to be a symptom of the Veteran's PTSD. A complete rationale for all opinions expressed must be provided. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ko, Elise 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.