Citation Nr: 21004575 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 17-38 720 DATE: January 27, 2021 REMANDED Entitlement to service connection for a sleep disorder, to include obstructive sleep apnea and/or primary insomnia, to include as secondary to service-connected lumbar strain is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from July 2000 to July 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a February 2020 Board videoconference hearing. A transcript of that hearing has been associated with the claims file. The Board notes that in an August 2020 rating decision, service connection was granted for major depressive disorder with anxious distress and alcohol use disorder, previously claimed as part management syndrome. As such, that matter is no longer before the Board. Entitlement to service connection for a sleep disorder, to include obstructive sleep apnea and/or primary insomnia, to include as secondary to service-connected lumbar strain is remanded. This matter was last before the Board in May 2020, at which time it was remanded for a new VA examination. The Veteran was afforded a VA sleep apnea examination in July 2020. The VA examiner opined that the Veteran's sleep apnea was less likely than not incurred in or caused by his service, noting that the Veteran was diagnosed with sleep apnea based on a 2016 sleep study and that his service treatment records are silent as to sleep apnea. The examiner then stated that there is "no evidence to reasonably suggest that the Veteran's [sleep apnea] is at least as likely as not related to his military service." The examiner further opined that the Veteran's sleep apnea is less likely than not proximately due to or the result of his service-connected conditions. No rationale was provided. A Board remand confers upon an appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271; D'Aries v. Peak, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). Additionally, when VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). Here, the VA examiner failed to address the Veteran’s assertions of onset of symptoms while in service and provided no rationale of any kind regarding the negative opinion for secondary service connection, which also failed to address aggravation. The Board finds this examination is inadequate and remands this matter for a new VA examination. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his claimed sleep disorder, to include obstructive sleep apnea and/or primary insomnia. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the Veteran’s claimed sleep disorder, to include obstructive sleep apnea and/or primary insomnia, at least as likely as not related to service? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran’s description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? Is the Veteran’s sleep disorder, to include obstructive sleep apnea and/or primary insomnia, at least as likely as not proximately due to any his service-connected conditions? Is the Veteran’s sleep disorder, to include obstructive sleep apnea and/or primary insomnia, at least as likely as not aggravated, i.e., worsened beyond its natural progression, by his service-connected conditions? The examiner must address the Veteran’s testimony at the February 2020 Board hearing that while on active duty he worked the night shift and stated a belief that was the onset of his sleep disorder. He then stated that it was during his third year in that he "started noticing that[his] rhythm was going off. He then stated that he started going to doctors and was accused of lying. He then stated that coming out of the service he had trouble sleeping consistently and going to the VA. (Continued on the next page)   The examiner’s attention is invited to the October 17, 2016 VA treatment record which notes the Veteran reported he was unable to sleep on his left side or on his back due to left leg pain. He further stated that headaches cause him to wake up in the night. 2. After completing the requested actions, and any additional development deemed warranted, readjudicate the claims in light of all pertinent evidence and legal authority. If the benefits sought remain denied, furnish to the Veteran a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brian P. Keeley 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.