Citation Nr: 21065436 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 17-14 717 DATE: October 26, 2021 REMANDED 1. Entitlement to service connection for obstructive sleep apnea is remanded. 2. Entitlement to service connection for a neck disability, to include degenerative disc disease, is remanded. REASONS AND BASES FOR REMAND The Veteran served on active duty from December 1976 to December 1996. These matters come before the Board of Veterans' Appeals (the Board) from a November 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before the undersigned Veterans' Law Judge (VLJ) in August 2019. A transcript of the hearing is associated with the claims file. The Board previously remanded these matters in October 2019, February 2021, and July 2021 for further development. Unfortunately, these matters must be remanded once again because the RO did not substantially comply with the Board's prior remand instructions. Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand). 1. Entitlement to service connection for obstructive sleep apnea is remanded. The Veteran seeks service connection for sleep apnea. The Veteran asserts that a sleep disability simply began in service for which he sought treatment for in 1994, to include symptoms of "snoring loudly and violently," and "constantly waking throughout the night." See September 2021 lay statement. In July 2021, the Board remanded this matter to obtain a VA examination and opinion that adequately considered the lay evidence of record to include buddy statements, and lay statements by the Veteran. The RO obtained a VA opinion in August 2021. The only reference the examiner made to the buddy statements of record was to quote the February 2021 VA examiner in part by stating lay statements "although full of advocacy, lack of any evidential objectivity." The Board finds this opinion to be inadequate. Merely quoting a statement made by a prior examiner pursuant to an opinion that was found to be inadequate, is insufficient. While these individuals may not be competent to diagnose the Veteran's sleep apnea, their descriptions of the Veteran's symptoms may well be competent if based on their personal observations and must be given appropriate weight. 2. Entitlement to service connection for a neck disability, to include degenerative disc disease, is remanded. The Veteran seeks service connection for a neck disability, diagnosed as degenerative disc disease (DDD), arguing he has had continuous neck pain since service. Notably, his service treatment records reflect he was treated for a neck strain in 1979; at his Board hearing, he testified that he has had pain since that injury. In July 2021, the Board remanded this matter to obtain a VA examination and opinion that adequately considered the lay evidence of record to include buddy statements, and lay statements by the Veteran. In an August 2021 VA opinion, the VA examiner opined that the Veteran's cervical spine disability was less likely than not related to his active-duty service. In providing the requested opinion, the VA examiner relied on the lack of "consistent objective abnormal neck exam notes from 1980-2010," until 14 years after the Veteran's separation, and lack of documented treatment for cervical degenerative disc disease prior to 2010. Again, the VA examiner failed to specifically address the Veteran's lay statements concerning the onset and continuous nature of his neck symptoms since service. Because the August 2021 VA examiner relied on the absence of contemporaneous medical evidence, did not address the Veteran's lay statements regarding his history of neck symptoms, and did not adequately address buddy statements of record regarding the Veteran's history of sleep symptoms, the Board finds that the August 2021 VA opinions are inadequate and did not substantially comply with the July 2021 remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Therefore, another remand is required to obtain supplemental VA opinions. Accordingly, the matters are REMANDED for the following action: 1. Send the claims file to a VA examiner of appropriate expertise (M.D.), who has not previously provided an opinion in this case, to provide an addendum opinion. The entire claims file, to include a copy of this REMAND, must be provided to the examiner and reviewed in full. Thereafter, the examiner should provide a fully-articulated opinion addressing the following: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea was incurred in or otherwise related to the Veteran's service? (b) If it is determined that there is another likely etiology for the Veteran's sleep apnea, that should be stated. (c) The examiner is specifically asked to comment on the Veteran's contentions that his in-service septoplasty did not correct his sleep issues. In providing the requested opinion, the examiner must specifically consider and address the following evidence: Statement by the Veteran's spouse that while the Veteran snored when they married in 1975, he still seemed to be having restful and rejuvenating sleep. As years passed this changed significantly. Some time after 1987 while stationed at Okinawa, his snoring increased to the point it would keep her awake. His snoring also became so labored that it would sound like he was almost choking in his sleep. His symptoms have persisted throughout their entire to marriage and continue to date. See September 2015 buddy statement. Statement by the Veteran's former in-service coworker that during overnight shifts they would take turns sleeping and she recalls the Veteran's constant, loud snoring. She also recalls numerous occasions that he would stop breathing. See September 2020 buddy statement. Statement by the Veteran's former commanding officer that the Veteran's in-service snoring was well known to him and the entire team. And that on occasion during a training exercise he made the Veteran sleep in a supply container so that the Veteran's snoring would not give away their position. See March 2020 buddy statement. The Veteran's statement that when he sought treatment for a deviated septum in 1994, he had never heard of anything called "sleep apnea," and that this initial treatment should be reasonably inferred as treatment for a sleeping disorder. It was not until many years later that he talked to a coworker with the same symptoms who identified the condition as sleep apnea. At this time, the Veteran states he contacted his primary care provider who referred him to for a sleep study which ultimately resulted in his diagnosis and prescription for CPAP. See September 2020 lay statement. The examiner is advised that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. The examiner must provide a complete rationale for any opinions offered, citing to the examiner's own expertise, medical principals, and/or evidence in the Veteran's record, when necessary, to support the conclusion reached. If an opinion cannot be reached without resorting to speculation, the examiner must fully explain why that is so. The Board reminds the examiner that failure to comply with the examination directives outlined herein will render the opinion inadequate and will result in further remand of the Veteran's claims 2. Send the claims file to a VA examiner of appropriate expertise (M.D.), who has not previously provided an opinion in this case, to provide an addendum opinion. The entire claims file, to include a copy of this REMAND, must be provided to the examiner and reviewed in full. Thereafter, the examiner should provide a fully-articulated opinion addressing the following: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's neck disability was incurred in or otherwise related to the Veteran's service? (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's cervical spine degenerative disc disease (DDD) developed within one year of separation from service? (c) Do the Veteran's reports of multiple in-service neck injuries and continuous symptoms since service, reflect manifestations of an in-service neck disability, to include DDD, that have been continuous to the present day? (d) If it is determined that there is another likely etiology for the Veteran's neck disability, that should be stated. In providing the requested opinions, the examiner is must specifically consider and address the following evidence: The Veteran's April 2017 complaint of chronic neck pain for the past 30 years. See April 12, 2017 private treatment note. The Veteran's lay assertion that his MOS as a security officer required him to spend many hours wearing combat helmets, flack vests, and carrying ruck sacks that weighed a minimum of 50 pounds, which exacerbated his neck issues. See September 2015 lay statement, August 2019 Board hearing testimony. The Veteran's lay assertion that apart from the in-service neck strain in 1979, and a car crash two years before he retired from service, he has not sustained any other injuries or illnesses to his neck or back that could have caused or aggravated the injury to his neck. Id. Nexus opinion from the Veteran's treating provider Dr. H. stating that based upon his knowledge of the Veteran's current condition and a review of his medical records dating back to the late 1970's, that the Veteran's condition was as likely as not caused by his service/ a result of his in-service duties. See December 2020 private opinion by Dr. H. The Veteran's lay assertion that when he made a statement to a provider about a lot of stressors while a police officer, that he was referring to not only his post-service occupation, but also his in-service MOS of security officer and that these stressors date back to 1976. See September 2021 lay statement. The examiner is advised that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. The examiner must provide a complete rationale for any opinions offered, citing to the examiner's own expertise, medical principals, and/or evidence in the Veteran's record, when necessary, to support the conclusion reached. If an opinion cannot be reached without resorting to speculation, the examiner must fully explain why that is so. The Board reminds the examiner that failure to comply with the examination directives outlined herein will render the opinion inadequate and will result in further remand of the Veteran's claims. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Gates 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.