Citation Nr: 21065113 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 15-36 221 DATE: October 25, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from October 1986 to June 1991 and from August 2011 to October 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned at a hearing in May 2019. In September 2019 and June 2021, the Board remanded the claim for additional development. Entitlement to service connection for sleep apnea is remanded. VA has a duty to ensure any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (overruled on other grounds, Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)). A medical opinion is adequate where it is based upon consideration of the full medical history and describes a disability in sufficient detail so that the Board's evaluation will be fully informed. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). A remand by the Board confers on a Veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. If the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran seeks entitlement to service connection for sleep apnea. In June 2021, the Board remanded her claim to obtain an addendum medical opinion as to whether her diagnosed sleep apnea was at least as likely as not causally related to her active service. The clinician providing the requested opinion was required to review and discuss all lay reports as to the Veteran's snoring, daytime sleepiness, and instances where the Veteran stopped breathing in her sleep following a 2011 deployment to Kuwait. Lay reports are competent as to observable behavior and symptoms. If the clinician dismissed any competent lay reports, he was directed to provide a complete explanation for doing so. An addendum opinion was obtained in June 2021. The clinician stated he was unable to consider reports of breathing problems without an objective sleep study documenting these reports. However, lay people are competent to report an observation that someone has stopped breathing. Additionally, an April 2015 sleep study, documenting obstructive apneas and hypopneas, is included in the claims file. The examiner's dismissal of these reports is not supported by an adequate explanation. Further, the June 2021 opinion does not include any discussion of the competent lay reports of daytime sleepiness. The June 2021 addendum opinion does not provide the analysis required by the Board's remand directives. There has not been substantial compliance with the Board's prior remand. See Stegall, supra. The Board also notes, the June 2021 clinician suggested the Veteran's insurance company declined to provide a sleep study and insurance company records as to this decision are "very important evidence." However, there is no indication that any insurance company declined to provide a sleep study. The evidence of record includes the records from Dr. R. T., the Veteran's private physician who referred the Veteran for a sleep study in January 2015. As noted above, an April 2015 sleep study from Tupelo Neurology confirmed a diagnosis of sleep apnea. In December 2015, the Veteran provided a statement which explained that, following her physician's referral, the first provider she contacted to perform the sleep study did not accept her private insurance. She worked with her private physician and scheduled the April 2015 sleep study at Tupelo Neurology. The clinician's suggestion that an insurance company declined to provide a sleep study is not based on an accurate review of the medical and lay evidence of record. Accordingly, it is not clear that he fully reviewed the evidence or considered the Veteran's complete and accurate medical history. His opinion is inadequate. See Stefl, supra. The matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician who has not previously provided an etiology opinion in this case. The clinician must opine as to whether the Veteran's sleep apnea is at least as likely as not related to her active duty service, including reports of increased snoring, daytime sleepiness, and instances where the Veteran stopped breathing in her sleep following a 2011 deployment to Kuwait. The clinician is advised that the Veteran and other lay persons are competent to report their observations. All lay reports, including the May 2019 testimony and the December 2015 lay statements (from W. B. and from the Veteran) must be discussed. If any lay observations are dismissed a complete explanation for doing so must be provided. It should be noted that statements of symptoms capable of lay observation may not be dismissed solely on the basis that they are not documented in contemporaneous medical treatment records. The clinician is informed that there is no evidence to support a finding that an insurance company declined to provide insurance coverage for a sleep study. This suggestion must be disregarded. If the clinician determines that an additional examination is necessary to provide the requested opinion, schedule an examination. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jeanne Celtnieks 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.