Citation Nr: 21075672 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 16-61 406 DATE: December 21, 2021 REMANDED Service connection for obstructive sleep apnea (OSA) is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1973 to November 1975. This matter was previously remanded by the Board of Veterans' Appeals (Board) in July 2021 for further evidentiary development. Service Connection OSA The Veteran seeks service connection for OSA. Specifically, he contends that his OSA began during his active service when he experienced difficulty falling asleep. Treatment records show that the Veteran has a current diagnosis of OSA. See June 2015 Sleep Consultation. A remand by the Board confers on the claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessities remand for corrective action. Id. Substantial compliance with the remand order, not strict compliance, is required. Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1990). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Stegall, 11 Vet. App. at 271. Unfortunately, for reasons expressed immediately below, the Board finds that this issue must be remanded again for further development. The Board regrets the delay associated with this remand but finds that this remand is necessary to ensure that the Veteran is accorded full compliance with VA's statutory duty to assist. Pursuant to the Board's prior remand, the Veteran underwent VA examination in August 2021. At that time, the examiner noted that the Veteran's OSA onset in 2015. The Veteran reported that he had difficulty sleeping due to depression and anxiety, that he sleeps with a CPAP machine, and that he gets an average 3 to 4 hours of sleep per night. The examiner opined that it was less likely than not that the Veteran's OSA is directly related to active service. The examiner explained that, because service treatment records (STRs) are silent for sleep apnea, a nexus cannot be established. On the question of secondary service connection, the examiner opined that it was less likely than not that the Veteran's OSA was proximately due to, or the result of, the service-connected tinnitus. Specifically, the examiner noted that the conditions are not medically related and that a thorough review of medical literature failed to demonstrate a causal relationship. The Board finds the August 2021 VA medical opinion to be inadequate. In providing an opinion for direct service connection, the examiner solely relied on the absence of a finding of sleep apnea in the STRs. Indeed, a negative opinion based solely on the lack of evidence in service treatment records is inadequate. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Thus, a remand is necessary to afford the Veteran a new VA examination with an adequate medical opinion. Accordingly, this matter is REMANDED for the following action: Obtain a medical opinion from an appropriate VA examiner to determine the etiology of the Veteran's sleep apnea. The examiner should review the claims file and note that review in the report. The examiner should ensure that all indicated tests and studies are conducted. Then, the examiner should provide opinions responding to the following: (a.) For any sleep apnea identified, is it at least as likely as not (50 percent or better probability) that itis etiologically related to his active service? Why or why not? (b.) For any sleep apnea identified, is it at least as likely as not (50 percent or better probability) that it is caused by the Veteran's service-connected tinnitus? (c.) For any sleep apnea identified, is it at least as likely as not (50 percent or better probability) aggravated by (worsened beyond its natural progression) by the Veteran's service-connected tinnitus? The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring that the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a scheduled VA medical examination may impact determinations made. 38 C.F.R. § 3.655. He is also advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. R. Bobb, 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.