Citation Nr: 21070342 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 09-45 835 DATE: November 23, 2021 REMANDED Entitlement to service connection for a right ankle disability, to include fracture residuals, is remanded. Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1979 to August 1983. This appeal is before the Board of Veterans' Appeals (Board) from January 2010, December 2012, June 2013, and May 2014 rating decisions of a Department of Veterans Affairs (VA) Regional Office. These matters were previously before the Board in July 2020, when remanded for further development. Unfortunately, the September 28, 2021 Report of General Information is not enough to effectuate an opt-in to the modernized review system, also known as the Appeals Modernization Act (AMA). The Board's August 30, 2020 letter instructed the Veteran to submit a new VA Form 10182 within 60 days. It also informed the Veteran that the July 23, 2021 VA Form 10182 could not be processed absent the submission of a new VA Form 10182. The 60-day period provided in the letter has passed without the submission of a new VA Form 10182. Thus, the Veteran's appeal remains in the legacy system. 1. Entitlement to service connection for a right ankle disability, to include fracture residuals, is remanded. Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the issue of entitlement to service connection for a right ankle disability. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). In July 2020, the Board ordered a VA medical opinion on whether the Veteran had a right ankle disability related or aggravated by the Veteran's service-connected right knee disability. The VA examiner instead offered an opinion about the Veteran service-connected left knee disability. An addendum VA medical opinion is warranted to address the Veteran's right knee secondary service connection contentions. The medical opinion must address the Veteran's March 2013 reported symptoms which included pain, swelling, and "giveaway causing her to fall," as ordered by the United States Court of Appeals for Veterans Claims in January 2020. 2. Entitlement to service connection for sleep apnea is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for sleep apnea because no VA examiner has considered the Veteran's July 2021 lay statements. Once VA undertakes to provide an examination, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In May 2021, a VA examiner opined that the sleep apnea was "was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness." The VA examiner explained that there was no in service medical evidence of any sleep apnea problems. The May 2021 opinion is inadequate because it does not reflect consideration of all the relevant evidence of record, including July 2021 lay statements. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Dalton v. Nicholson, 21 Vet. App. 23 (2007). In July 2021, the Vetern stated that sleep apnea symptoms, including difficulty sleeping, breathing while sleeping, nightmares, pain, and sleep deprivation, began in April 1979 during service. The Veteran also contended the sleep apnea may also be related to being placed in a discharge unit until passing a running test and other physical complaints, including a left knee injury during service for which the Veteran is now service-connected. A VA medical opinion addressing the Veteran's July 2021 lay statements are warranted. The matters are REMANDED for the following action: 1. The Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack of credibility should be presumed from this remand order. 2. Forward the claims file to an appropriate VA examiner. If the requested opinions cannot be provided without another examination of the Veteran, schedule her for a VA examination with an appropriate examiner. The examiner should review the claims file, to specifically include the April 2014 and May 2021 ankle examination reports and opinions; and any evidence indicating that the Veteran experiences symptoms of right knee instability or locking, including statements on March 2013 VA knee examination where the Veteran described symptoms of pain, swelling, and giveaway causing her to fall, and the examiner reported that the service-connected right knee results in functional loss, including interference with weight-bearing and excess fatigability. Then, the examiner should determine whether it is at least as likely as not (i.e., a 50 percent probability or more) that any right ankle disability, to include fracture residuals, is caused or aggravated (i.e., worsened beyond its natural progression) by the Veteran's service-connected right knee patellofemoral syndrome with arthritis. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or whether the limits of current medical knowledge have been exhausted in providing an answer to that question. 3. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's sleep apnea. Schedule the Veteran for a VA examination, if necessary, to answer the following questions. The examiner must review the claims file. The examiner is asked to provide a response to the following: (a.) Is the sleep apnea at least as likely as not related to service, including symptoms of since service? (b.) Is the sleep apnea at least as likely as not proximately due to the Veteran's service-connected knee disabilities? (c.) Is the sleep apnea at least as likely as not aggravated, i.e., worsened beyond its natural progression, by the Veteran's service-connected knee disabilities? Provide a rationale to support the opinion. If the examiner cannot provide an opinion without resorting to mere speculation, then the examiner should explain whether more information is needed or whether the limits of current medical knowledge have been exhausted. In providing the requested opinion, consider the Veteran's description of in-service injury and symptoms as well as post-service symptoms. Stated another way, do the Veteran's reports about symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James Hekel 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.