Citation Nr: 21064038 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 16-62 514 DATE: October 18, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from June 2005 to June 2011. This matter comes before the Board of Veterans Appeals (Board) on appeal from a March 2014 decision by a Department of Veteran's Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in May 2018 and February 2020. Both times, the Board instructed the RO to obtain records missing from the claims file, and to schedule new VA examinations regarding the etiology of the Veteran's sleep apnea. While the first of these instructions has been completed, the Board unfortunately must remand a third time to obtain a new VA examination. When a case is remanded, a veteran is entitled to substantial compliance with all remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). If the RO does not substantially comply with the Board's remand instructions, the Board is legally bound to continue remanding until the mistake is corrected. See id. Furthermore, VA has a duty to ensure that any examination it provides is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the June 2021 VA examination, obtained in response to the February 2020 Board remand instructions, is inadequate. The June 2021 VA examination offered the following opinion on direct service connection: Veteran diagnosis of sleep apnea that is less likely than not (less than 50 percent probability) incurred in or caused by (the) snoring in service during service. Diagnosis of sleep apnea is confirmed by sleep study and Veteran's sleep study was done on 1/8/11 just after discharge but did not show diagnosis of sleep apnea, a repeat was done in 2013 which confirm the diagnosis of sleep apnea. Therefore Veteran diagnosis of sleep apnea did not incur during service. A nexus has not been established. (Note: The Veteran has submitted documentation of a January 2011 clinic visit where he was told that the results of his January 2011 sleep study could not be found in the electronic medical record. However, the January 2011 sleep study has since been located and added to the claims file, and was reviewable to the VA examiner.) The key problem with the June 2021 VA medical opinion is that it rests entirely on the conclusion that sleep apnea per se did not have its onset during active service. However, direct service connection does not require a claimant's current disability to have had its onset during service in its current form. Entitlement to service connection on a direct basis requires only (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The incurrence of sleep problems during the Veteran's active servicesleepwalking, pauses in breathing during sleep, snoring, daytime fatigueis well documented in his medical records, particularly from December 2010 to February 2011. A February 2011 primary care visit, following up on the January 2011 sleep study, noted that the sleep study was "negative" but also said that "the respiration rate demonstrated apnea" and "snoring was observed." The February 2011 visit listed "sleepwalking disorder," "nonorganic sleep disorders," and "fatigue" among the Veteran's chronic medical problems. While the January 2011 sleep study did not diagnose sleep apnea, this is not automatically fatal to the Veteran's claim; the question is not whether the Veteran's in-service sleep problems were diagnosable as sleep apnea in 2011, but whether there is a nexus between his in-service sleep problems and his current diagnosis of sleep apnea. The October 2019 VA examination offered an opinion that was inadequate in the same way: Witnessed accounts of observed sleeping are not an adequate predictor of sleep apnea. A diagnosis of sleep apnea requires a sleep study. Veteran underwent a PSG [polysomnography, or sleep study] on 1/8/11 just a few months prior to release from [active duty] for complaints of snoring/nocturnal apnea/daytime fatigue and weight at that time was 203 lbs (which was also the weight noted at discharge (6/24/11 note)). This sleep study did not note sleep apnea (RDI 0.6/hr). Veteran underwent a repeat PSG nearly 2.5 years after release from service and sleep apnea was noted. Weight at the time of this repeat PSG was 239 lbs which is a significant increase from weight in service. Both weight gain and advancing age (2.5 years older since service) are risk factors for the development of sleep apnea. Again, for an examiner to conclude that the Veteran's sleep apnea is unrelated to his active service, they must not only find that his sleep apnea did not have its onset during service; they must find that there is no nexus between his in-service sleep problems and his later diagnosis of sleep apnea. Is it truly more likely than not that the Veteran's sleep apnea diagnosis in 2013 was entirely caused by him gaining 36 pounds and reaching the "advanced age" of 26 in the two years following separation, and that the sleep-apnea-like symptoms he exhibited during service are merely a coincidence? Perhaps it isthe Board is not qualified to make medical judgments, which is why it cannot simply grant the Veteran's claim outrightbut on remand, the examiner must answer this question. The matters are REMANDED for the following action: 1. Obtain an opinion from an appropriate clinician, who has not already provided an opinion in this case, regarding the nature and etiology of the Veteran's obstructive sleep apnea. If the clinician believes an in-person or telehealth examination is necessary, one should be scheduled. After reviewing the entire claims file, including a copy of this remand, the examiner should answer the following: (a) Is it at least as likely as not (50 percent probability or greater) that the Veteran's sleep apnea had its onset during active service? (b) If the Veteran's sleep apnea did not have its onset during active service, is it at least as likely as not that the Veteran's sleep apnea is related to any event, injury, or disease that was incurred during active service? The examiner should specifically address the Veteran's in-service complaints of sleep problems such as snoring, apnea, sleepwalking, and daytime fatigue. (c) Is it at least as likely as not that the Veteran's sleep apnea was caused or aggravated by a service-connected disability, to include hypertension? (d) If the Veteran's sleep apnea is unrelated to his active duty service or any service-connected disability, what is its likely etiology? The examiner must explain the etiology of the Veteran's sleep apnea with reference to his individual circumstances; e.g., if the examiner cites "advancing age" as an alternate cause of his sleep apnea, they should explain whether the risk of sleep apnea is significantly higher at age 26 compared to age 23. A complete and fully explanatory rationale must be provided for any opinion offered, citing any record evidence or medical literature relied upon. The examiner must give due weight to the Veteran's lay testimony. If an opinion cannot be rendered without resorting to speculation, the examiner must explain why. 2. This case has been Advanced on the Docket. The Agency of Original Jurisdiction (AOJ) must review the examination reports and opinions to ensure they are adequate and comply with the Board's specific remand directives herein. If an opinion is deficient in any manner, the AOJ must undertake immediate corrective action before returning the case to the Board. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shermila Sundquist 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.