Citation Nr: 21072836 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 14-29 839 DATE: December 6, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (sleep apnea) is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1974 to October 1980. This matter comes to the Board of Veterans' Appeals (Board) from a March 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The appeal was previously before the Board in June 2018, July 2020, and most recently, in March 2021, at which time the appeal was remanded. The RO issued a supplemental statement of the case in August 2021, and the appeal has been returned to the Board for further appellate review. In a March 2015 VA Form 9, the Veteran requested a hearing before the Board. The Veteran failed to report to his scheduled hearing without offering good cause and has not since requested a new hearing. As a result, the Board considered his hearing request to be withdrawn. See 38 C.F.R. § 20.704 (d). Entitlement to service connection for sleep apnea is remanded The Veteran contends that he should be service connected for sleep apnea because he has had continuing symptoms related to sleep apnea since his military service for which he was later diagnosed with sleep apnea. A remand confers on the claimant, as a matter of law, the right to compliance with the remand order and imposes upon the VA a concomitant duty to ensure compliance with the remand. See Stegall v. West, 11 Vet. App. 268 (1998). In keeping with this, once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The March 2021 Board remand determined that, although the October 2019 and October 2020 VA opinions did not indicate a diagnosis for sleep apnea, the evidence sufficiently demonstrates the Veteran has a diagnosis of sleep apnea. It was also decided that the October 2019 and October 2020 VA sleep apnea opinions were inadequate because no nexus opinions were provided. As such, the appeal was remanded to obtain a new VA etiology opinion. As required by the March 2021 Board remand, a new VA sleep apnea opinion was obtained in June 2021. Unfortunately, the Board finds the VA sleep apnea opinion did not substantially comply with the Board remand and is inadequate. See Stegall; see also Barr. The March 2021 Board remand specifically directed that "the examiner must not rely on the lack of treatment or complaints of sleep apnea in service, or the opinion will be returned as inadequate." The June 2021 VA sleep apnea opinion provided multiple conclusions and rationales regarding direct service connection, secondary service connection due to a service-connected disability, and aggravation related to a service-connected disability. However, the rationales for the opinions were repeatedly based upon a lack of evidence showing diagnosis or treatment during the Veteran's military service, contrary to the March 2021 Board remand directive. See Id. A lack of evidence cannot be corroborating to conclude that there is no relationship between the Veteran's current disability and his military service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Furthermore, in making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Consistent with this, the Board directed that the examiner must assume as true the Veteran's testimony as to in-service gagging, snoring and choking during sleep while on active duty. The examiner mentioned the Veteran's statement that he was told he snored during military service, but the examiner failed to discuss the Veteran's statements that during his military service he gagged, choked when he felt like he was swallowing his own saliva, had a hard time sleeping, would fall asleep while sitting down, had fatigue, and sought care for the sleep apnea in the 1980's. See December 2014 Decision Review Hearing Testimony. The Veteran also provided testimony that he did not go to sick call due to fear of not getting promoted and that he believed, because of his race, he would be labeled as lazy if he went to sick call. The Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that "a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor's opinion"). As the examiner failed to address critical lay evidence, the Board must conclude that significant facts were not considered in providing the June 2021 addendum opinion. Upon remand, the Veteran should be afforded a new in-person VA sleep apnea examination allowing him an opportunity to discuss with the examiner his personal experiences regarding the symptoms he has had since military service, to include the information noted above and any other potentially relevant information. Based on the foregoing reasons, remand is warranted for further development. The matters are REMANDED for the following action: 1. Associate with the case file any relevant outstanding VA medical records. 2. The RO must assist the Veteran in procuring any outstanding available private medical records that have not yet been associated with the claims file. The RO must provide the Veteran with the proper authorization forms for release of information and ask the Veteran to complete the forms in order that VA may assist the Veteran in obtaining any relevant private medical records. The RO must provide the Veteran with the appropriate period of time to complete and return the authorization forms. If the initial request for such information is not responded to the RO must issue a follow-up request. Upon receipt of authorization by the Veteran to obtain the relevant medical records, the RO must make reasonable efforts, at least two (2) attempts, to obtain the relevant records. All attempts to secure this evidence must be documented in the claims file, and if, after exhausting efforts to obtain the named records, they are not able to be secured and it is determined that they do not exist or that further attempts would be futile, the RO must provide the required notice and opportunity to respond to the Veteran. 3. After the development above is complete, schedule the Veteran for a VA examination with an appropriate examiner for the issuance of a medical opinion as to the nature and etiology of his sleep apnea. The examiner should thoroughly review the Veteran's entire claims file, including a copy of this Remand. The examiner should provide the following: a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea was incurred in or is otherwise related to active service? b.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea was caused or aggravated by any service-connected disease or injury? The examiner is advised that aggravation is defined as any increase in severity of a disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease or injury. The examiner is advised that the Veteran is competent to report symptoms and treatment and that his reports, including his reports as to the onset and nature of his symptoms, must be considered, along with the other evidence of record, in formulating the requested opinions. In addressing the questions above, the examiner is directed to assume as true, and must address, the Veteran's testimony as to in-service gagging, snoring, choking during sleep, fatigue, difficulty falling asleep, and falling asleep while sitting down. (Continued on the next page) A complete rationale for any opinions expressed should be set forth. The examiner must not rely on the lack of treatment or complaints of sleep apnea in service, or the opinion will be returned as inadequate. If unable to opine without resorting to speculation, please provide a basis for reaching this conclusion. J. TUNIS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Temple, 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.