Citation Nr: 18152099 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 13-26 637 DATE: November 20, 2018 REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to a higher initial rating for a left hip disability is remanded. REASONS FOR REMAND In August 2016 the Board remanded the two issues on appeal for further development. The first issue, entitlement to service connection for sleep apnea, was remanded because the Veteran provided credible evidence during a Board hearing of difficulty sleeping shortly after returning from the Gulf War. He had also claimed his diagnosis of sleep apnea was secondary to his service-connected posttraumatic stress disorder (PTSD). The prior Board decision indicated a VA examination and medical opinion was warranted, however this was inadvertently not included in the remand instructions themselves, and thus this development was not undertaken by the Regional Office (RO). Given that VA and private treatment records show a current diagnosis of sleep apnea, a medical opinion alone is likely sufficient to determine the medical nexus element of the Veteran’s claim. Regarding his claim for an increased initial evaluation for a left hip disability, development undertaken by the RO did not comply with the August 2016 Board remand instructions. The April 2017 VA examination and subsequent November 2017 addendum opinion properly determined the Veteran’s current level of disability following his total hip replacement and were compliant with the holdings of Correia. Correia v. McDonald, 28 Vet. App. 158 (2016). However, the examiner failed to adequately describe the severity of the Veteran’s hip disability prior to the surgery, as instructed by the remand. Compliance with Board remand instructions is not discretionary. Stegall v. West, 11 Vet. App. 268 (1998). The examiner was instructed to determine if the medical evidence showed that the Veteran’s left hip disability symptomatology had worsened in the period between a December 2011 VA examination and a February 2014 total hip replacement. However, the VA examiner stated in both his examination report and subsequent addendum opinion that he could not address the severity of the disability without resulting to speculation, and was unable to determine whether symptoms had worsened since the December 2011 VA examination as he was not present during that examination. The December 2011 VA examination report, VA and private medical records, and lay testimony are of record for the relevant period. The Board remand instructions were thus to offer an opinion after reviewing this information to determine if a noticeable increase in symptomatology could be determined. Given the information of record, the Board finds that the examiner’s conclusory opinion that he could not offer an opinion without resort to speculation is insufficient. Therefore, further development is needed to adjudicate the Veteran’s claim. The matters are REMANDED for the following action: 1. Obtain any VA clinical records that are not already associated with the claims file. 2. Then, a VA examiner, after reviewing the claims file, should ascertain whether the Veteran’s diagnosis of sleep apnea is related to service. The report should include a discussion of the Veteran’s lay recollections of events in-service and his onset of sleeping issues. The examiner is asked to answer the following questions: (a.) Is sleep apnea at least as likely as not (a 50 percent probability or greater) caused by or related to his active duty? (b.) Is sleep apnea at least as likely as not (a 50 percent probability or greater) proximately due to or aggravated by his service-connected PTSD? The examiner must provide a full rationale for all opinions. 3. Next, a VA examiner should determine whether the Veteran’s service-connected left hip disability worsened from the date of the December 2011 VA examination until his left hip replacement surgery in February 2014. The examiner is asked to answer the following questions: (a.) Based on a review of the medical and lay evidence in the claims file, did the symptoms of the Veteran’s left hip disability worsen in the period between December 2011 and February 2014? (b.) Specifically, does the evidence show or suggest any additional limitation of motion, ankylosis, flail hip, femur impairment, or any other additional impairment that was not noted or measured in the December 2011 VA examination? The examiner should provide a full rationale for all opinions, and specifically address the Veteran’s lay assertions and any relevant medical records. The examiner is not asked to speculate, but rather to determine whether the evidence is sufficient to show that the Veteran’s symptoms worsened during the identified period. 4. After all development has been completed, the RO should rea-adjudicate entitlement to service connection for sleep apnea and entitlement to an increased rating for a left hip disability. If the benefits sought are not granted, the RO should furnish the Veteran and his representative with a Supplemental Statement of the Case, and should give him a reasonable opportunity to respond before returning the record to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (Continued on the next page)   These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Brendan A. Evans, Associate Counsel