Citation Nr: 21067029 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 14-44 037A DATE: November 3, 2021 REMANDED Entitlement to service connection for a left knee condition is remanded. Entitlement to service connection for a sleep disorder is remanded. REASONS FOR REMAND The Veteran had active service from June 1981 to November 1981 and from April 1982 to July 2005. This case was previously before the Board where it denied entitlement to service connection for left knee condition and sleep apnea. The Veteran appealed that decision to the Court of Appeals for Veterans Claims (the Court). In a January 2021 order, pursuant to the terms of the Joint Motion for Remand (JMR) by the parties, the Court ordered the December 2019 Board decision to be vacated. The Court returned the issues to the Board which issued a remand decision in May 2021 for both issues. 1. Entitlement to service connection for a left knee condition is remanded. The May 2021 remand, pursuant to the JMR from the Court, included a directive to account for all of the Veteran's service treatment records (STRs). The Board notes that the claims file has many pages of STRs that appear to have been provided by the Veteran at the outset of his first claim. There is a March 2011 memorandum stating that STRs are unavailable. After the May 2021 Board remand, the RO uploaded some additional personnel records which appear to be duplicative of others in the file. There is not a formal memorandum or finding regarding if there are STRs that are unavailable that do not appear in the pages of STRs already in the file. The Board errs when it fails to ensure substantial compliance with a Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order); Dyment v. West, 13 Vet. App. 141, 147 (1999) (clarifying that substantial compliance with Board remand is required). Where the Board fails to ensure substantial compliance, remand is appropriate. Stegall, 11 Vet. App. at 271. Accordingly, the Board finds it necessary to remand these issues for the RO to complete its development. Additionally, the medical provider in the previous medical opinion, e.g., May 2019, based part of the rationale on the lack of related complaints or treatment in the STRs. Accordingly, the RO must determine if any STRs are unavailable, then produce a memorandum as to the result, and then obtain a new VA medical opinion that reflects those findings. If the Veteran has some STRs that are unavailable, the medical provider should acknowledge that the STRs are incomplete as documented. 2. Entitlement to service connection for a sleep disorder is remanded. As above, the prior remand required a search and documentation for the potentially unavailable STRs. Further, the prior remand in May 2021 directed the RO to obtain a VA examination for sleep disorders, to include a specific assessment whether the Veteran has diagnosed insomnia, and to consider all potential sleep disorder diagnoses beyond sleep apnea. The July 2021 VA examiner provided an opinion based solely on records review and did not perform a new VA examination in person. The examiner did not discuss if there was a specific diagnosis of insomnia. The examiner did not discuss alternative sleep disorder diagnoses or lack thereof. Accordingly, this opinion did not comply with the prior remand directive, and the RO should schedule the Veteran for a VA examination and related medical opinion. The matters are REMANDED for the following action: 1. The AOJ should verify whether some of the Veteran's service treatment records (STRs) remain unavailable. Please document the related efforts in a memorandum. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified, and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. After making a formal determination on the availability of any remaining STRs, schedule the Veteran for a VA examination (in person) for sleep disorders, including but not limited to sleep apnea. The examiner should review the claims folder and acknowledge such review. The RO should inform the examiner of the status of the STRs and the examiner should acknowledge the findings of the review of STR availability. Following a review of the claims file, the reviewing examiner is requested to respond to the following: a. Does the Veteran have a diagnosis of insomnia? b. What, if any, are the Veteran's diagnosed sleep conditions? c. For each sleep disorder identified, is it at least as likely as not (i.e. 50 percent or greater) that the disorder was incurred in or a result of an event, injury, or illness during active-duty service? d. For each sleep disorder identified, is it at least as likely as not (i.e. 50 percent or greater) that the disorder is proximately due to or aggravated by any of the Veteran's service-connected disabilities? e. For each sleep disorder identified, is it at least as likely as not (i.e. 50 percent or greater) that the disorder is a result of exposure while present in the Southwest Asia theatre of operations during the Gulf War? f. Is it at least as likely as not (i.e. 50 percent or greater) that any sleep problems are part of, or manifestations of, an undiagnosed illness? The examiner should provide a complete rationale for the opinions, whether favorable or unfavorable, and cite to specific evidence of the record, as necessary. The examiner must specifically address the competent lay evidence of record, including the Veteran's lay statements. The Veteran is competent to attest to observable symptoms such as difficulty sleeping, waking during the night, and choking. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. 3. Request an addendum medical opinion on the Veteran's left knee condition. The examiner should review the claims folder and acknowledge such review. The RO should inform the examiner of the status of the STRs and the examiner should acknowledge the findings of the review of STR availability. Following a review of the claims file, the reviewing examiner is requested to respond to the following: (a.) Is it at least as likely as not (i.e. 50 percent or greater) that any current left knee condition was incurred in or a result of an event, injury, or illness during active-duty service? (b.) Is it at least as likely as not (i.e. 50 percent or greater) that any diagnosed knee condition is proximately due to or aggravated by any of the Veteran's service-connected disabilities? The examiner should provide a complete rationale for the opinions, whether favorable or unfavorable, and cite to specific evidence of the record, as necessary. The examiner must specifically address the competent lay evidence of record, including the Veteran's lay statements. The Veteran is competent to attest to observable symptoms such difficulty walking or pain. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Miller, 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.