Citation Nr: 21002729 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 14-09 259 DATE: January 14, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from September 1999 to September 2003. This appeal was remanded to the Agency of Original Jurisdiction in April 2019 for further development to include obtaining an adequate medical opinion as to the nature and etiology of the Veteran’s sleep apnea. However, the Board determines that there has not been substantial compliance with the April 2019 remand directives. Accordingly, further remand is required. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for sleep apnea is remanded. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand orders. Where the remand orders of the Board were not complied with, the Board itself errs in failing to ensure compliance. Id. In its April 2019 remand, the Board requested a VA nexus opinion in connection with the Veteran’s claim for service connection for sleep apnea. The record reveals a VA examination was scheduled for November 10, 2019. The AOJ and the examination provider sent notice to the Veteran’s address of record on October 30, 2019. The Board acknowledges that the Veteran failed to report for a scheduled VA examination on November 10, 2019. However, the Board notes that the evidence of record does not reflect that the Veteran was properly notified of his scheduled examination. Given the date of the scheduled examination, it is impossible the notice was given at least 30 days in advance of the scheduled examination. Because the Veteran was not properly notified of his scheduled examination, the Board finds good cause for the Veteran’s failure to report for his VA examination. Moreover, the Veteran’s representative argues that all contentions have not been considered in the Veteran’s service connection claim. In addition to direct service connection, the Veteran, through his representative, contends that his sleep apnea is secondary to his service-connected posttraumatic stress disorder (PTSD). Therefore, on remand a qualified examiner must address each theory of entitlement. The matters are REMANDED for the following action: 1. Obtain any pertinent and outstanding VA treatment records and associate them with the claims file. 2. Obtain a medical opinion from a qualified clinician to determine the etiology of the Veteran’s diagnosed sleep apnea. The claims file must be made available to and reviewed by the examiner. Any indicated studies should be performed. Provide the Veteran a VA examination, only if deemed necessary by the examiner. 3. After review of the record, the examiner should provide answers to the following inquiries: a) is it at least as likely as not (50 percent or better probability) that the Veteran’s sleep apnea had its onset during the Veteran’s active service or is otherwise etiologically related to such service. b) is it at least as likely as not that the Veteran’s sleep apnea is proximately due to or aggravated by his service-connected PTSD or medications taken for this condition. The examiner should note aggravation indicates a worsening of the underlying conditions as compared to an increase in symptoms. The examiner must consider the Veteran’s lay statements, including the statements of the Veteran, his friends, and family members, regarding the onset and continuity of his symptoms, and the private physician’s 2019 statement. The examiner is advised that the Veteran is competent to attest to observable symptoms. If there is a medical basis to support or doubt the Veteran’s reports of symptomatology, the examiner should provide a fully reasoned explanation. The examiner must provide a complete rationale for any and all conclusions reached. If the examiner is unable to provide an opinion without resorting to mere speculation, then the examiner must state this and provide any information that would be needed, if possible, to make an opinion. 4. The Veteran must report for the examination or show good cause for failing to report. 38 C.F.R. § 3.655. If the Veteran fails to report his claim may be decided based on the evidence of record. 38 C.F.R. § 3.655 (b). If the Veteran refuses the examination or fails to report for the examination, that should be clearly documented in the record, to include evidence that the notice letter was sent to the proper address. If the Veteran does not attend a scheduled VA examination, please assign an examiner to review the claims file and attempt to provide an opinion as to the nature and etiology of his diagnosed sleep apnea based upon the evidence of record. 5. Then, readjudicate the claim on appeal. If the benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning the matter to the Board for further appellate review. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Sherman Associate 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.