Citation Nr: 21077153 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 15-03 525 DATE: December 28, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from February 2005 to August 2007. This matter came before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the matter in October 2018, February 2021, and July 2021 for additional development. In the July 2021 remand, the Board directed the RO to obtain an addendum medical opinion. Pursuant to the July 2021 Board remand, the RO obtained medical opinion on nature and etiology of the Veteran's diagnosed sleep apnea in July 2021. However, the Board finds this opinion inadequate and not responsive to the directives set forth in the July 2021 remand. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Board is obligated by law to ensure that there is a substantial compliance with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Regrettably, there has not been a substantial compliance with the Board's July 2021 remand directives; hence, another remand is warranted. Entitlement to service connection for obstructive sleep apnea is remanded. In March 2012 and November 2013 notices of disagreements, and in August 2018 and June 2021 Appellate Briefs, the Veteran and his representative contended that the Veteran's sleep apnea had its onset during service, and that it is also secondary to his service-connected inguinal hernia. A medical opinion on direct service connection was obtained in November 2019 and a medical opinion on secondary service connection was obtained in March 2021. In its July 2021 remand, the Board found the November 2019 VA medical opinion inadequate because the opinion relied on the absence of a diagnosis of sleep apnea during the Veteran's service as the basis for the negative opinion. Whereas the Board found that the lack of contemporaneous records does not preclude granting of service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim). The Board also found that the November 2019 VA medical opinion did not consider the Veteran's and his comrade's lay statements regarding the alleged symptoms of sleep apnea during service. Therefore, in July 2021, the Board remanded the matter and directed the examiner to provide an addendum opinion as to whether the Veteran's sleep apnea had its onset in service or otherwise related to an in-service injury, event, or disease. The Board specifically directed the examiner to consider the Veteran's reports and his comrade's statement regarding the onset of sleep problems during his active service. Also, the Board advised the examiner that the medical opinion should not be predicated solely on the absence of an in-service diagnosis or documented complaints, and if any medical history is discounted, a complete explanation is required. Furthermore, the Board directed the examiner to opine whether the Veteran's reported symptoms align with how the currently diagnosed disability is known to develop medically. Pursuant to the Board's July 2021 remand, a VA medical opinion was obtained in July 2021, in which the examiner opined that it is less likely than not that the Veteran's diagnosis of sleep apnea is related to his military service. As a rationale, the examiner stated that the Veteran's service treatment records do not document a diagnosis of obstructive sleep apnea nor any symptoms suggestive of obstructive sleep apnea. First sleep symptoms are documented in 2010, and though the note reads that the Veteran reports "years" of symptoms, there is no specific time frame that links these symptoms to service. The only suggestion of symptoms during service is a self-reported historical statement from the Veteran at his 2012 compensation and pension examination suggesting fellow serviceman told him he snored. There are no corroborating statements. The only lay statement is from his wife, which can only date his snoring/symptoms back to 2010/2011. The examiner concluded that there is no objective evidence linking the Veteran's sleep apnea to service (was not diagnosed during service nor is there evidence it had its origin during service or was linked to any other diagnosis of event during service). The Board finds the July 2021 VA negative nexus medical opinion inadequate because it is based on incorrect factual premises, since the examiner stated there are no statements or evidence corroborating the Veteran's self-reported medical history. Whereas the Board notes that in a July 2013 statement, the Veteran's comrade who served with the Veteran reported that he was the Veteran's roommate from February 2005 to August 2007, where he noticed that the Veteran had a severe snoring problem, sounded like he was choking or gasping for air, and occasionally sounded like he was holding his breath. Also, he reported that the Veteran had trouble sleeping at night and difficulty staying awake during the day. The Board also notes that a June 2010 VA treatment record noted that the Veteran presented with approximately years of disruptive snoring and observed apneas during sleep, and had complaints of resistible daytime hypersomnolence, xerostomia, and sleep offset headaches. Also, an October 2010 private treatment record noted that the Veteran had obstructive sleep apnea based on history as well as sleep walking, insomnia, long standing migraine headache, and daytime sleepiness. Additionally, the Board finds that the July 2021 VA examiner's rationale was based on the substantial emphasis placed on the sufficiency and credibility of the Veteran's statements. The Board notes that the sufficiency of the Veteran's statements requires a credibility analysis that is a legal determination. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). As such, that portion of the VA examiner's rationale was outside the examiner's expertise as there is no indication from the record that the VA examiner is a legal professional. Hence, the Board concludes that a remand is warranted to obtain a new medical opinion on the nature and etiology of the Veteran's diagnosed sleep apnea. The matter is REMANDED for the following action: 1. Obtain a medical opinion on the nature and etiology of the Veteran's diagnosed sleep apnea from a VA clinician other than the one who rendered the July 2021 medical opinion. Further in-person examination is left to the discretion of the clinician providing the opinion. If the clinician deems such examination is necessary, then an examination should be scheduled. 2. After reviewing the claims file and a copy of this remand, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's sleep apnea had its onset during his period of active service, or related to an in-service injury, event, or disease. In providing the above opinion, the examiner is advised to address the evidence of record associated with the claims file with entries dated: (i) 07/28/2011, titled "Medical Treatment Record Government Facility" page 38 of 127 that contains a September 2010 sleep study report diagnosing sleep apnea; page 59 of 127 that contains a June 2010 VA treatment record, noting that the Veteran's history and physical examination are suggestive of sleep disordered breathing; (ii) 08/07/2012, titled "Medical Treatment Record Non-Government Facility" page 16 of 19, which contains an October 2010 private treatment record, noting that the Veteran had obstructive sleep apnea based on history as well as sleep walking, insomnia, long standing migraine headache, and daytime sleepiness; (iii) 11/25/2013, titled "Correspondence," which contains a July 2013 statement from the Veteran's comrade, who reported that he was the Veteran's roommate from February 2005 to August 2007, where he noticed that the Veteran had a severe snoring problem, sounded like he was choking or gasping for air, and occasionally sounded like he was holding his breath. The examiner is advised that the opinion should not be based solely on the absence of an in-service diagnosis or documented complaints of sleep apnea. Also, the examiner should specifically opine whether the Veteran's and his comrade's statements, regarding in-service sleep problems, align with how the currently diagnosed sleep apnea is known to develop medically. (Continued on the next page) A complete rationale for the opinion rendered must be provided. If the examiner is unable to provide an opinion without resorting to mere speculation, then the examiner must state this and provide any information needed to make an opinion, if possible. 3. Thereafter, readjudicate the claim on appeal. If the benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning the matter to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tariq, Nadeem, 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.