Citation Nr: 21065871 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 17-18 292 DATE: October 27, 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 July 1981 to June 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded the matter in March 2019 and February 2021. Although the Board regrets the additional delay, remand is required to ensure there is a complete record on which to decide the Veteran's claim. Entitlement to service connection for sleep apnea is remanded. In February 2021, the Board remanded the matter in order to afford the Veteran a VA examination for his claim for sleep apnea. The Board directed the examiner to determine whether it is at least likely as not that the Veteran's sleep apnea is related to service, including exposure to asbestos. The Board also requested that the examiner determine whether it is at least likely as not that the condition was caused or aggravated by the Veteran's service-connected right shoulder strain or right shoulder ankylosis. In July 2021, the Veteran underwent a VA sleep apnea examination in which he was diagnosed with obstructive sleep apnea. However, the examiner opined that it was less likely than not that the condition was related to the Veteran's service. The examiner stated that the Veteran has "sleep apnea, not asbestosis" and that the two conditions are not related. The was no further rationale in support of the examiner's negative nexus finding. The Board finds the opinion to be inadequate for adjudication purposes. First, the examiner's rationale is conclusory in nature. Further, the Board notes that the February 2021 remand directed the examiner to determine whether the Veteran's sleep apnea was related exposure to asbestos, not asbestosis. The examiner's rationale discussed why sleep apnea is not related to asbestosis and failed to address whether exposure to asbestos may have caused the condition. The examiner also opined that it was less likely than not that the Veteran's sleep apnea was either caused or aggravated by his service-connected right shoulder strain or right shoulder ankylosis. Regarding both causation and aggravation, the examiner stated that "there is no medical relationship with the right shoulder" without any further substantive rationale. The Board notes that in the Veteran's October 2020 appellate brief, his representative cited to multiple studies indicating a connection between sleep disorders and pain. One study specifically discusses musculoskeletal pain and its relation to obstructive sleep apnea. The February 2021 examiner did not address any argument or studies cited in the appellate brief as they relate to causation or aggravation of sleep apnea by his service-connected right shoulder disabilities. Accordingly, the Board also finds the opinions regarding secondary service connection to be inadequate for adjudication purposes. First, the Board notes that the examiner's rationale that "there is no medical relationship with the right shoulder" is conclusory. Further, the examiner failed to address argument and multiple cited articles in the October 2020 appellate brief in support of a theory of secondary service connection. A remand confers on the claimant, as a matter of law, the right to compliance with a remand order. See Stegall v. West, 11 Vet. App. 268 (1998). Additionally, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted above, the opinion as to direct service connection was inadequate and failed to comply with February 2021 remand directives. Further, the opinion as to secondary service connection was also inadequate. Accordingly, the claim must be remanded in order to obtain an adequate examination and opinion that complies with prior Board directives. See Barr, supra; Stegall, supra. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an examiner other than the July 2021 examiner to determine the nature and etiology of his sleep apnea. Any indicated evaluations, studies, or tests deemed necessary by the examiner should be accomplished. The entire claims file, to include a complete copy of this REMAND, should be made available to the examiner designated to provide an opinion and the examination report should include a discussion of the Veteran's documented medical history and assertions. The examiner must address the following: (a.) Determine whether it is at least likely as not (a 50 percent probability or greater) that the Veteran's sleep apnea was caused or aggravated by his active duty service, to include exposure to asbestos or respiratory conditions resulting from such exposure. (b.) Determine whether it is at least likely as not (a 50 percent probability or greater) that the Veteran's sleep apnea was caused or aggravated by his service-connected right shoulder strain and/or right shoulder ankylosis, including any pain caused by such conditions. **In responding to the above, the examiner must consider all relevant lay and medical evidence of record, to include argument and cited studies in the October 2020 appellate brief associated with the claims file. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries and that his reports must be taken into account in formulating the requested opinions. The examiner must provide rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Watkins, 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.