Citation Nr: 21067816 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 08-13 302 DATE: November 5, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected major depressive disorder (MDD), is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1971 to February 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision from a Department of Veterans Affairs (VA) Regional Office. The extensive procedural history of this case was detailed in prior Board decisions, and that procedural history is incorporated herein by reference. The Board most recently remanded this matter in May 2021, and the Veteran's claim for entitlement to service connection for erectile dysfunction, to include as secondary to service connected MDD was also remanded. In an August 2021 rating decision, the agency of original jurisdiction (AOJ) granted service connection for the Veteran's erectile dysfunction disability. Accordingly, this represents a full grant of benefits with regard to that claim, and the issue is no longer before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). Now the matter before the Board. The Veteran seeks service connection for OSA, contending the disability is directly related to service and possibly secondary to MDD. He reported snoring loudly and sometimes waking up gasping for air on his December 2007 claim, and relayed to the January 2018 VA examiner that he experienced sleeping difficulties when he returned from the service and fellow servicemembers had commented on his loud snoring while in-service. See Statement in Support of the Claim, received December 11, 2007; January 2018 VA sleep disorders examination. Unfortunately, the Board finds that further AOJ action on the claim on appeal is warranted, even though such action will, regrettably, further delay an appellate decision on this matter. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The May 2021 remand determined that an adequate medical opinion had not yet been provided, as the February 2021 VA examiner was unable to review the Veteran's sleep study and therefore could not comment on the whether the disability was related to service either directly or due to his service connected MDD. Thus, the Board remanded the matter for a new addendum medical opinion on direct and secondary service connection. The AOJ was directed to provide the Veteran's claims file, including the January 2018 sleep study, for consideration by the examiner. Further, the examiner was specifically requested to address the Veteran's contentions regarding comments about snoring during service and sleeping difficulties after service. Pursuant to the May 2021 Board remand, the Veteran underwent a VA telehealth examination for OSA in June 2021. The examiner, a pulmonologist, reviewed the evidentiary file and medical records, to confirm the Veteran's diagnosis of OSA from the January 2018 sleep study. The examiner provided an overview of the Veteran's sleep study history, sleep apnea diagnosis, the physiology of OSA, and the other risk factors for OSA. Relying in part on the absence of treatment for 45 years, the examiner concluded that OSA less likely than not had its onset in active duty or was otherwise related to service. Further, the examiner determined OSA was less likely than not caused by or aggravated by the Veteran's MDD. As rationale, the examiner relied on medical treatises to explain there is no evidence that MDD causes or aggravates OSA. The June 2021 VA examiner failed to address the Veteran's lay assertions, to include the contention that he had sleeping difficulties upon his return from the service, fellow servicemembers commented on his loud snoring during service, and that he snores really loudly and sometimes wakes up gasping for air. Therefore, the Board finds that the opinion is inadequate and does not comply with the prior remand directives. See Barr. v. Nicholson, 21 Vet. App. 303, 311 (2007); Stegall v. West, 11 Vet. App. 268, 271 (1998). Under these circumstances, the Board finds that remand is warranted for a new VA medical opinion. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide an examination, it must ensure that the examination is adequate). Accordingly, the matter is REMANDED for the following actions: 1. The AOJ should obtain a medical opinion from a medical professional with appropriate expertise to provide a nexus opinion as to the etiology of the Veteran's sleep disorder, to include sleep apnea. If the examiner determines that the requested opinion cannot be provided without first examining the Veteran, then schedule the Veteran for an appropriate examination. The examiner should review the entire claims file, to include a copy of this REMAND, prior to rendering the opinion and note that such review took place. After a review of the claims file, the examiner is asked to respond to the following: Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed sleep disorder, to include OSA, had its onset in service or is otherwise causally or etiologically related to service, to include any symptomatology, event, or in-service incident. The examiner should specifically consider and address the Veteran's contentions that he had sleeping difficulties upon his return from the service, fellow servicemembers commented on his loud snoring during service, and that he snores really loudly and sometimes wakes up gasping for air. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed sleep disorder, to include OSA, was (1) caused (proximately due to) , and (2) aggravated (worsened beyond the natural progression of the disability) by the Veteran's MDD. The examiner should specifically consider and address the Veteran's contentions that he snores really loudly and sometimes wakes up gasping for air, as well as his November 2015 inpatient treatment where multiple periods of apnea was witnessed and attributed to OSA. See November 15, 2015 San Diego VA Medical Center treatment records. The examiner should provide a complete rationale for any opinion provided. The examiner is advised that the Veteran is competent to report the onset of his symptoms and history, and such reports, including those of continuity of symptomatology, must be considered and acknowledged in formulating any opinion. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. 2. After completion of the above and any additional development deemed necessary, the issues on appeal must be readjudicated. If the claims remain denied, the Veteran and his representative must be provided a Supplemental Statement of the Case and afforded the opportunity to respond. Thereafter, the appeal must be returned to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Gipson, 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.