Citation Nr: 21070127 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 17-61 979 DATE: November 23, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from July 1970 to August 1981. He also served in the Air Force reserves from August 1981 to April 1985 and in the Air Force National Guard from April 1985 to June 2007. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision issued by a VA Regional Office (RO). The Veteran testified at a hearing before the undersigned in November 2020 and a transcript of the proceeding has been associated with the claims file. By way of background, the Board remanded the Veteran's claim seeking service connection for sleep apnea in a June 2021 decision. The Board directed the RO to obtain a VA medical opinion, for the first time, to determine the nature and etiology of the Veteran's sleep apnea. The resulting opinion was not responsive to the Board's directive and, therefore, further remand is required. See Stegall v. West, 11 Vet. App. 268, 271(1998). Entitlement to service connection for sleep apnea is remanded. The Veteran contends his sleep apnea had its onset while in service. At the outset, the Board notes that the Veteran has a current diagnosis of obstructive sleep apnea and there are several reports of complaints and treatment for snoring or breathing problems in the Veteran's service treatment records beginning in April 1990. However, as the Board made clear in its June 2021 decision, the Veteran's service includes various periods of active duty, active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) of which his Air Force Reserves and National Guard records do not document his service in a day-month-year format. Under the law, active military service includes (1) active duty (AD), but also (2) any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or an injury incurred or aggravated in the line of duty, and (3) any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury, but not a disease, incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident that occurred during such training. 38 U.S.C. § 101 (24)(B); 38 C.F.R. § 3.6(a). Here, the Veteran testified he recalled being on ACDUTRA from September 4, 1990 to December 16, 1990, but his personnel records do not confirm this and repeated efforts by the RO to gather detailed information concerning these periods of service have been futile. Therefore, the Board notes that there is at least some (albeit lay) evidence that some portions of his 1990 reservist duty was on ACDUTRA when his symptomatology began. As such, the Veteran's claim was remanded to obtain a medical opinion to ascertain whether the Veteran's sleep apnea was first incurred in service or otherwise related to service to include consideration of his and his spouse's described symptoms in the 1990s. Subsequent to the Board's remand, the RO obtain a July 2021 medical opinion. The examiner opined that the Veteran's sleep apnea was not related to service. Her rationale focused on the Veteran's "progressive weight gain from 1974 to 2011" and explained how "the most common cause of obstructive sleep apnea is obesity". The examiner further noted that the Veteran's STRs contain a handwritten note dated December 6, 1992 by a Dr. T.G. which indicated snoring and sleep apnea issues however, the examiner concluded "these symptoms were noted 10 years after discharge from active duty". The Board finds the July 2021 opinion to be inadequate for adjudicative purposes and a remand is warranted. The Board specifically directed the examiner to opine first as to whether the Veteran's sleep apnea had its onset in service. In response, the July 2021 examiner noted only the December 1992 noted by Dr. T.G. and disregarded it on the basis that this note was made 10 years after the Veteran's discharge from active duty. However, as noted above, the Veteran's service included various periods of active duty, ACDUTRA and INACUDTRA of which exacts dates have not been able to be ascertained by the RO. Nonetheless, the Board previously found the Veteran's and his spouse's testimony to be credible to indicate that some of his reservist duty in the 1990's was during ACDUTRA. As a result, the examiner's dismissal of the December 1992 note without further explanation is conclusionary and does not accurately reflect the facts of this case. See Stefl v. Nicholson, 21 Vet.App. 120, 124-25 (2007) (a mere conclusion by an examiner is insufficient to allow the Board to make a fully informed decision as to the probative value of the opinion). See also Reonal v. Brown, 5 Vet.App. 458, 460-61 (1993) (medical opinion based on inaccurate factual premise may properly be rejected as non-probative). In addition, the July 2021 examiner failed to specifically address and consider the lay testimony from the November 2020 Board hearing. Instead, the examiner appears to have focused her attention on the Veteran's perceived obesity and progressive weight gain. There is no discussion as to the Veteran's and his spouse's testimony nor an explanation as to why such statements, if indeed considered, were discounted. See Miller v. Wilkie, 32 Vet. App. 249 (2020) (holding when an examiner fails to address lay evidence, and the Board doesn't find the Veteran not credible or not competent to offer that evidence, the proper remedy is for VA to get a new exam). Thus, the Board finds substantial compliance with the Board's June 2021 remand directives has not occurred and there remains insufficient information to adjudicate the Veteran's claim at this time. See Stegall, 11 Vet. App. at 271. Therefore, as substantial compliance with the Board's June 2021 Remand directives has not occurred as set forth above, the Veteran's claim must once again be remanded for further development. See id. The matters are REMANDED for the following action: 1. Obtain an addendum VA medical opinion from an appropriate clinician regarding the nature and etiology of the Veteran's sleep apnea. If an examination is deemed necessary to respond to the questions presented, one should be scheduled. The examiner is asked to address the following: (a) Whether it is at least as likely as not that the Veteran's current sleep apnea was first incurred in service. The examiner should specifically consider and address the November 2021 testimony by the Veteran and his spouse as to the onset of symptoms in the 1990s, to include snoring and breathing problems, which are also documented in his service treatment records. The examiner should also address the December 6, 1992 note by Dr. T.G. indicating snoring and sleep apnea problems. The examiner is reminded that the Veteran has various reservist duty where he was on ACDUTRA in the 1990s. (b) If the onset of sleep apnea is found to not have occurred in service, opine whether it is at least as likely as not that the Veteran's sleep apnea is otherwise related to service in light of his and his spouse's described symptoms in the 1990's, to include snoring and breathing problems. The examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical and medical expertise; established medical principles; and references to the evidence of record, as appropriate. The examiner is reminded that the Veteran and his spouse are competent to offer lay statements. If the examiner, choses to discount a lay statement he/she should explain why. (Continued on the next page) If any opinion cannot be expressed without resort to speculation, ensure that the examiner so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 2. After the above development, and any additionally indicated development has been completed, readjudicate the issue on appeal. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. F. Minnitte, Attorney Advisor 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.