Citation Nr: 21073479 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 16-41 884 DATE: December 8, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from March 2008 to August 2008 and from May 2009 to May 2010. In February 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the electronic claims file. The Board remanded this appeal in May 2021 for further development, including obtaining a VA addendum medical opinion regarding the Veteran's sleep apnea disability. However, as set forth more fully below, substantial compliance with the Board's May 2021 Remand directives has not yet occurred; accordingly, the Veteran's claims for service connection for sleep apnea, must be remanded again for further development. See Stegall v. West, 11 Vet. App.268, 271 (1998). 1. Service connection for sleep apnea. Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. As an initial matter, the Board notes that 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 at 271. This issue was previously remanded in May 2021, to obtain a VA addendum medical opinion regarding whether the Veteran's sleep apnea disability is related to service. The Board provided very detailed reasons for the remand in the May 2021 remand and provided specific directives. Specifically, the Board requested under remand directive #1(a), that for the medical opinion on whether the Veteran's sleep apnea disability was related to service, the examiner shoulder comment on the Veteran's lay statements of symptoms in service and the exposure to sand, dust, or smoke from burning trash or feces in Iraq. A subsequent VA addendum medical opinion was provided in July 2021; however, it was accompanied by an inappropriate rationale. The July 2021 VA examiner opined that the Veteran's sleep apnea was not related to service. However, the examiner's rationale did not include any discussion or comments on the Veteran's lay statements of symptoms in service and the exposure to sand, dust, or smoke from burning trash or feces in Iraq. As the July 2021 opinion did not address all of the evidence and did not provide a complete rationale, a further addendum opinion is necessary to have a VA examiner comment on the Veteran's lay statements of symptoms in service and the exposure to sand, dust, or smoke from burning trash or feces in Iraq. See Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence... is essential for a proper appellate decision"). In sum, the Board finds that there has not been substantial compliance with the remand directives and corrective action is necessary to obtain another medical opinion addendum. Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that where the remand of the Board or the Court is not complied with, the Board errs as a matter of law when it fails to ensure compliance). Although the Board regrets this delay, such a remand is necessary to ensure fair and appropriate adjudication of the Veteran's claim consistent with VA's duties to assist. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding the etiology of the sleep apnea disability. The examiner must review the Veteran's claims file, including this remand, and explain the complete rationale for all opinions expressed and conclusions reached. All manifestations related to the Veteran's sleep apnea disability must be addressed. The VA examiner should offer the following opinions: Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's sleep apnea disability had its onset during service or are otherwise related to active duty service. In so doing, the appropriate examiner MUST specifically comment and discuss the following: The Veteran's lay statements of symptoms in service and the exposure to sand, dust, or smoke from burning trash or feces in Iraq. A thorough rationale should be provided for all opinions expressed, including discussion of the facts of this case and any medical studies or literature relied upon. The examiner should fully articulate a sound reasoning for all conclusions made. If any requested medical opinion cannot be given, the examiner should state the reason(s) why. The entire claims file, including a copy of this REMAND, must be reviewed. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Dourmashkin 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.