Citation Nr: 21075323 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 20-17 344 DATE: December 20, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected nightmare disorder (previously characterized as posttraumatic stress disorder (PTSD)) and/or as due to in-service exposure to herbicide agents, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from August 1965 to July 1967, to include service in Vietnam. His decorations include the National Defense Service Medal and the Vietnam Campaign Medal. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. This case was previously before the Board in September 2020, February 2021, and August 2021, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. On each occasion, after taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. Although the Board sincerely regrets the additional delay, yet another remand is necessary to ensure compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Service connection for OSA is remanded. The Veteran contends that he has OSA due to his service in Vietnam. He also contends that his sleep apnea is secondary to his service-connected nightmare disorder (previously characterized as PTSD). See, e.g., Appellate Brief received in June 2020. This matter was previously remanded in order for the Veteran to be provided an examination, either in person or via a telemedicine appointment. See August 2021 Board Remand. If an in-person examination or telemedicine appointment by a VA medical provider could not be accomplished (thus necessitating a medical opinion based solely on review of the Veteran's claims folder), the reason for that was to be annotated in the claims file. On remand, no examination or telemedicine appointment was conducted. A September 2021 medical opinion was generated solely on the basis of a review of the available medical evidence, and no reason was annotated as to why an in-person examination or telemedicine appointment could not be provided. Consequently, this matter must again be remanded for compliance with the Board's remand instructions. Updated records of VA treatment should also be procured. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). This matter is REMANDED for the following action: 1. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. After the foregoing development has been conducted, schedule the Veteran for a VA examination which may be accomplished either in person or via a telemedicine appointment by a VA medical provider (and not simply a review of the medical evidence) with the appropriate training and expertise to determine the nature and etiology of the Veteran's OSA. If an in-person examination or telemedicine appointment by a VA medical provider cannot be accomplished (thus necessitating a medical opinion based solely on review of the Veteran's claims folder), the reason therefore should be annotated in this file. A complete copy of the claims file must be made available to the examiner. The examiner must consider the Veteran's lay reports of observable symptomatology. The examiner must also take a history from the Veteran regarding his symptoms. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should offer an opinion as to each of the following: (a.) Is it at least as likely as not (i.e., is it 50 percent or more probable) that the Veteran's OSA had its onset in, or is otherwise attributable to, his period of active service? In so doing, the examiner should discuss the medical significance, if any, of the Veteran's conceded exposure to herbicides. (b.) The examiner should also opine as to whether the Veteran's OSA was at least as likely as not caused or aggravated (i.e., permanently or temporarily worsened beyond normal progression) by his service-connected nightmare disorder (previously characterized as PTSD). In addressing whether the service-connected disability was a source of aggravation for the Veteran's OSA, the examiner must attempt to establish a baseline level of severity of the OSA prior to aggravation by the service-connected disability, if any can be determined. A complete medical rationale for all opinions expressed must be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph T. Leonard, 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.