Citation Nr: 21064985 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 18-07 327 DATE: October 22, 2021 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Army from July 1987 to April 1991. This issue comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded the issue in June 2021. In December 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. The Veteran contends that his sleep apnea is the result of military service. In addition, he contends that his sleep apnea was caused or aggravated by his service-connected posttraumatic stress disorder (PTSD). His claim for VA compensation was received by VA in July 2015. After finding the February 2020 post-remand opinions for direct service connection and secondary service connection inadequate for adjudicative purposes, the Board remanded this claim for adequate opinions in June 2021. Unfortunately, an additional remand is needed as the August 2021 post remand opinion does not comply with the Board's prior remand instructions. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). Moreover, in this case, the August 2021 post-remand's noncompliance is prejudicial to the Veteran. Id As to service connection on a direct basis, the August 2021 post remand did not address the Veteran's reports which have been found to be credible of continuous symptomatology from active duty service to present. Moreover, the opinion is contradictory. It relies on the Veteran not specifically noting "frequent trouble sleeping" on his report of medical history at separation. This symptomatology, according to the examiner, is "a hallmark" of obstructive sleep apnea. Yet later, the examiner states reports of: snoring, insomnia, difficulty falling asleep, difficulty staying asleep, easily awakening, movements during sleep, daytime fatigue and somnolence, and choking and gasping while sleeping are "nonspecific complaints with multiple possible etiologies." In one instance, a contemporaneous report of trouble sleeping would indicate inservice sleep apnea. Yet, in the other instance, the same complaint and similar complaints, would be nonconclusive. Also, as discussed in the Board's previous remand, an adequate addendum opinion is needed as to whether the sleep apnea condition is secondary to the Veteran's service-connected disabilities. The August 2021 opinion did not address this theory of entitlement. Accordingly, a remand is also needed for an adequate opinion for secondary service connection. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from a VA examiner, other than the examiner who rendered the August 2021 VA medical opinion regarding the nature and etiology of the Veteran's sleep apnea. The electronic claims file must be made available to the examiner. If the examiner determines that another VA examination is necessary, one should be scheduled. Based on a review of the record, and a new examination if necessary, the examiner must address the following: (a) Whether it is as least as likely as not (a 50 percent or greater probability) that the Veteran's sleep apnea manifested during service or is otherwise related to service? In answering this inquiry, the examiner is to accept that the Veteran's reports of continuous sleep issues since service have been found truthful and credible. The examiner must directly address these reports in his or her opinion. (b) Whether it is at least as likely as not (i.e., probability of 50 percent or higher) that the Veteran's sleep apnea condition is proximately due to or the result of the Veteran's service-connected disabilities? (c) If the answer to (b) is negative, is it at least as likely as not that his sleep apnea is aggravated (i.e., permanently or temporarily worsened) by the Veteran's service-connected disabilities? In answering this inquiry, the Board directs the examiner's attention to the July 2015 and March 2017 PTSD VA examinations which indicate sleep impairment is a symptom of the Veteran's PTSD. (d) If aggravation is found, the examiner should address the following medical issues: 1) the baseline manifestations of the disorder found prior to aggravation; and 2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disorder. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. "Aggravation" means any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease, and not due to the natural progress of the nonservice-connected disease. If aggravation is found, the examiner should attempt to quantify the extent of additional disability resulting from the aggravation. The examiner is advised that the Veteran is competent to report his medical history including symptoms and treatment, and that his reports have been found to be truthful and credible. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner is not to improperly discount the Veteran's lay statements or rely solely on an absence of medical evidence in the record to support his or her conclusions without explaining the significance of the absence of evidence. . A complete rationale must be provided for all opinions presented. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Wade 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.