Citation Nr: 21063872 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 16-42 585 DATE: October 18, 2021 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected right knee disability due to obesity, is remanded. REASONS FOR REMAND The Veteran served active duty from July 1973 to July 1977 and from June 1987 to January 1992. This matter comes before the Board from a May 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. A hearing was held via video conference before the undersigned Veteran's Law Judge (VLJ) in August 2019, a transcript of which has been associated with the record. The matter was remanded in November 2019, January 2021, and June 2021 Board decisions for additional development and has now returned for further appellate review. Entitlement to service connection for sleep apnea, to include as secondary to service-connected right knee disability due to obesity, is remanded. While additional delay is unfortunate, the Board finds further development is required before the Veteran's claim can be decided. Initially, the Board notes that a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran has asserted that his claimed sleep apnea is due to obesity, which he asserts developed because of his service-connected right knee disability. In the June 2021 Board remand directives, the RO was directed to obtain a medical opinion regarding the nature and etiology of the Veteran's claimed sleep apnea. The examiner was specifically asked to opine as to whether the Veteran's service-connected knee disability caused or aggravated his obesity and whether the Veteran's obesity was a substantial factor in the development of his diagnosed sleep apnea. In a July 2021 opinion, the examiner, however, failed to provide an opinion regarding whether the Veteran's service-connected knee disability caused or aggravated his obesity. The examiner also failed to address the March 2021 VA examiner's report which opined that the Veteran's sleep apnea is etiologically related to his increased weight to morbid obesity while on active duty service. Accordingly, the Board finds that the July 2021 medical opinion is inadequate for determining entitlement to service connection for sleep apnea and that remand is necessary to obtain a new medical opinion. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from a physician of appropriate expertise to state an opinion regarding the nature and etiology of the Veteran's claimed sleep apnea. The examiner should state an opinion with regards to the following: (a.) Opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's sleep apnea, had its onset in, or is otherwise attributable to, his period of active service. Specifically discuss the Veteran's reported in-service symptoms. (b.) Opine whether it is at least as likely as not that the Veteran's service-connected right knee disability caused or aggravated his obesity. (c.) Opine whether it is at least as likely as not that the Veteran's obesity was a substantial factor in the development of sleep apnea. (d.) Opine whether it is at least as likely as not that the Veteran's sleep apnea would not have occurred but for obesity caused or aggravated by a service-connected disability, to include a right knee disability. (e.) If it is determined that there is another likely etiology for the Veteran's sleep apnea that should be stated. (Continued on next page) The examiner should specifically address the medical opinion stated in the March 2021 examination report which found that the Veteran's sleep apnea is etiologically related to obesity. The examiner should also set forth all examination findings, with a clear rationale for the conclusions reached. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Gorum, 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.