Citation Nr: 21068085 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 16-62 649 DATE: November 9, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. INTRODUCTION The Veteran served on active duty from December 1990 to March 1991, January 2003 to February 2004, December 2008 to December 2009, August 2016 to August 2019, and April 2020 to June 2020. In November 2019, the Veteran attended a hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. When this case was previously before the Board in December 2019, June 2020, February 2021, and July 2021, the above-noted claim was remanded for additional development. The case has since been returned for further appellate review. REASONS FOR REMAND Though untenable, the Board finds yet another remand is required before the Veteran's claim is decided. In the course of the February 2021 remand, the Board determined this case presented sufficiently complex matters as to require medical opinions from a VA Pulmonary Disease specialist. The RO subsequently obtained medical opinions from a Pulmonary Disease specialist on May 18, 2021. However, the RO then subsequently obtained numerous additional service treatment records (STRs) covering the Veteran's most recent periods of active duty in May and July 2021. Since those records were not available or considered at the time the Pulmonary Disease specialist rendered his opinions, the Board most recently remanded the case in July 2021 to allow for their consideration by the Pulmonary Disease specialist. Following the Board's July 2021 remand, the RO obtained an addendum medical opinion from a physician who specializes on Obstetrics and Gynecology in September 2021. In addition to not being a specialist in these complex matters, which the Board previously found require a specialist's opinion, this physician did not even conduct an examination of the Veteran. Additionally, he wholly failed to consider or discuss the Veteran's competent reports. Examiners cannot ignore a veteran's statements related to lay observable symptoms. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). The examiner briefly discussed the Veteran's assertions of an increased body mass index (BMI), which resulted from both the psychological and pharmaceutical effects associated with his PTSD and treatment thereof; however, he chiefly focused on the manner by which the Veteran could address his weight gain, rather than whether his weight gain caused or contributed to his sleep apnea. For these reasons, the Board finds substantial compliance with the July 2021 Board instructions has not been achieved. A remand by the Board confers upon the claimant, 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). Therefore, a remand is again required. Accordingly, this case is REMANDED for the following actions: 1. Obtain a records review and addendum medical opinions from the May 2021 VA Pulmonologist who provided opinions addressing the Veteran's sleep apnea, and if unavailable from another Pulmonologist who specializes in sleep apnea syndromes. All pertinent evidence of record must be made available to and reviewed by the examiner, to specifically include the most recently obtained STRs which were received in May and July 2021. Another examination of the Veteran must be performed only if deemed necessary by the examiner providing the opinions. Following a review of the relevant records and lay statements, the physician is asked to state an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's sleep apnea: a) originated during his periods of active service or is otherwise etiologically related to his active service; b) was worsened during his August 2016 to August 2019 or April 2020 to June 2020 periods of active duty; c) was caused by his service-connected PTSD, to include any medication he takes for his PTSD or BMI increase that may have been caused by his PTSD; or d) was worsened to any degree by his service-connected PTSD, to include any medication he takes for his PTSD or BMI increase that may have been caused by his PTSD. The examiner must provide a complete rationale for all proffered opinions. The examiner must discuss and consider the Veteran's competent lay statements, as well as the medical journal articles provided by the Veteran. In particular, the examiner should note these articles suggest an increase in BMI has been shown to be associated with the onset of obstructive sleep apnea, and may be caused by psychiatric disorders. The examiner should also be mindful that by way of a recent precedential opinion, VA General Counsel indicated that although weight gain itself is not a disability, it may act as an "intermediate step" between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310 (a). See VAOPGCPREC 1-2017. If the examiner is unable to provide any required opinion, he should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he 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. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Fraser, 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.