Citation Nr: 21002681 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 14-06 912A DATE: January 14, 2021 REMANDED The claim of entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served in the U.S. Army from September 1989 to April 1996 and from February 2003 to May 2004. The Veteran contends that he is entitled to service connection for sleep apnea. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This appeal was first before the Board in May 2018, at which time the Board observed that the October 2017 and December 2017 VA medical opinions were inadequate in that the examiner did not provide a direct service connection opinion, and the examiner did not adequately address the Veteran’s complaints of fatigue or trouble sleeping during service. The Board remanded the issue to obtain an adequate VA medical opinion on the issue of direct service connection. In September 2019, a VA examiner provided a medical opinion on direct service connection. The case was returned to the Board in February 2020, at which time the Board found that the September 2019 VA medical opinion did not fully address the relevant evidence of record regarding the Veteran’s sleep symptoms. Specifically, the VA examiner did not address testimony by the Veteran and his wife from a November 2016 RO hearing, lay statements from the Veteran’s wife in buddy statements from January 2011 and March 2011, and two December 2016 buddy statements (received on December 14, 2015 and January 13, 2017) from the Veteran’s friends from service. The September 2019 VA examiner also did not address articles about sleep apnea that the Veteran had submitted, including an article from the American Legion about possible connections between sleep apnea and in-service exposure to smoke and dust; nor did the examiner address the Veteran’s reported in-service exposure to smoke, sand, dust, and other environmental exposures as shown in an April 2004 Post-Deployment Health Assessment. Thus, the Board remanded the matter for a new VA medical opinion that addressed the above-mentioned evidence. The Veteran underwent a new VA examination for sleep apnea in March 2020; and in March 2020 and July 2020, a VA examiner provided medical opinions concerning the Veteran’s sleep apnea. In the March 2020 and July 2020 medical opinions, the VA examiner generally stated that she considered “all medical and lay evidence of record”, but there is no indication that she specifically considered or addressed the April 2004 Post-Deployment Health Assessment, the articles submitted by the Veteran (including the aforementioned American Legion article), the November 2016 RO hearing testimony from the Veteran and his wife, or the buddy statements from the Veteran’s wife and his friends from service, all of which had been specifically requested by the February 2020 Board remand directives. Accordingly, the Board finds that the March 2020 and July 2020 medical opinions do not substantially comply with the Board’s February 2020 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). As such, the Board finds that remand is required in order to obtain a new VA medical addendum opinion that complies with the February 2020 Board remand. On remand, the Board also finds that any outstanding VA treatment records should also be obtained. See 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016) (where the Veteran “sufficiently identifies” other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the matter is REMANDED for the following actions: 1. Obtain any outstanding available VA medical records concerning the Veteran that have not yet been associated with the claims file. 2. After any outstanding VA treatment records have been added to the claims file, ask an appropriate examiner who has not previously participated in this decision to provide a medical opinion concerning the nature and etiology of the Veteran’s sleep apnea. The necessity of an in-person examination, with any appropriate testing, is left to the discretion of the examiner. The entire claims file must be made available to and reviewed by the examiner in conjunction with the medical opinion. The examiner should specifically list all of the evidence that they considered in rendering their opinion, to specifically include the noted documents below. The examiner should opine as to whether the Veteran’s sleep apnea disorder at least as likely as not (a 50 percent or greater probability): (a) had its onset during the Veteran’s active service; or (b) is otherwise related to an in-service injury, event, or disease, to include environmental exposures during his deployment in the Persian Gulf War. In addressing the above, the examiner should specifically address whether the Veteran’s OSA began during military service and has been chronic and continuous since discharge from service. In other words, the examiner should consider the lay statements of record with regards to the symptomatology experienced/witnessed during service or thereafter and provide a rationale for whether such demonstrates onset of OSA during military service. The examiner should also specifically consider and address all medical and lay evidence of record, including (1) the April 2004 post-deployment health assessment noting the Veteran’s report that his health got worse during deployment, his report of still feeling tired after sleeping, and his report of exposure to smoke, sand, dust, and other environment exposures (See VBMS, document labeled STR-Medical, receipt date 8/23/2012, pages 13-16 of 90), (2) the American Legion article noting that a sleep expert noted exposure to dust and smoke in places such as Iraq as contributing factors to sleep apnea (See VBMS, document labeled Correspondence, receipt date 11/1/2016, page 1 of 21), (3) the Veteran and his wife’s testimony at the Regional Office Hearing regarding his sleep problems (See VBMS, document labeled Hearing Testimony, receipt date 11/1/2016, pages 3-5 of 17), (4) the Veteran’s wife’s January 2011 statement (See VBMS, document labeled Buddy/Lay Statement, receipt date 3/1/2011, page 1 of 1), and (5) the Veteran’s friends from service’s December 2016 statements (See VBMS, document labeled Buddy/Lay Statement, receipt date 12/14/2016, page 2 of 2, and VBMS, document labeled Buddy/Lay Statement, receipt date 1/13/2017, page 1 of 1). The Board reiterates that merely stating that the examiner considered “all medical and lay evidence of record” will not be sufficient to fulfill this directive. Finally, the examiner should also discuss the Veteran’s lay statements regarding onset of symptoms and any continuity of symptomatology since onset and/or since discharge from service. The examiner should also consider any other pertinent evidence of record, as appropriate. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.