Citation Nr: 18155089 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 14-21 058A DATE: December 4, 2018 REMANDED Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty for training from June 1972 to October 1972, and on active duty form March 2005 to June 2006 and January 2008 to February 2009. He served honorably in the U.S. Army, including service in Kuwait, Iraq, and Cuba; he also served in the Army National Guard. The Board thanks the Veteran for his service to our country. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 Rating Decision of the San Juan, Puerto Rico, Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded this case in March 2018 for further development. An interim July 2018 Supplemental Statement of the Case continued denial of entitlement to service connection for sleep apnea. The case has now returned to the Board for further appellate review. While the Board regrets the delay, it finds that remand is required to comply with its March 2018 remand. The Board is obligated by law to ensure compliance with its directives, as well as those of the appellate courts. Where the remand orders of the Board or the courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). In its March 2018 remand, the Board directed that if the Veteran had been provided a positive nexus for any claimed psychiatric disability, the examiner should opine as to whether it is at least as likely as not that the Veteran’s sleep apnea is caused or aggravated by any psychiatric disability. The Veteran was provided an examination for post-traumatic stress disorder (PTSD) in May 2018, in which the examiner opined that the PTSD is at least as likely as not related to the Veteran’s service, and an examination for sleep apnea in June 2018. In a July 2018 rating decision, service connection was awarded for PTSD and a depressive disorder. In the June 2018 examination, the examiner opined, in part, that a causal relationship between the two disabilities “has not been convincingly established”; this is a higher standard than “at least as likely as not,” which is a 50 percent or greater probability. Additionally, the examiner did not provide an opinion as to whether the Veteran’s sleep apnea is aggravated by his psychiatric disability. Thus, the Board finds that there has not been substantial compliance with its directives. The matter is REMANDED for the following action: 1. Please obtain any updated VA and non-VA treatment records relevant to the claim. 2. The AOJ should refer the case to a VA clinician for an addendum medical opinion. The claims file must be made available to and reviewed by the clinician. Based on review of the record, the clinician should provide an opinion that responds to the following: a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s sleep apnea was caused by his service-connected PTSD and depressive disorder, NOS? b) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s sleep apnea was aggravated by (where aggravation is any increase in severity) the service-connected acquired PTSD and depressive disorder? The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. The examiner should take into consideration that the Veteran is competent to report in-service and post-service symptom experiences; other witnesses are competent to report observable symptoms. If the examiner cannot provide an opinion without resorting to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Vashaw, Associate Counsel