Citation Nr: 21006932 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 17-14 717 DATE: February 8, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for a neck disability, to include degenerative disc disease, is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1976 to December 1996. These matters come before the Board of Veterans’ Appeals (Board) from a November 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before the undersigned Veterans’ Law Judge (VLJ) in August 2019. A transcript of the hearing is associated with the claims file. In an October 2019 decision, the Board denied the Veteran’s claim of entitlement to service connection for a neck disability and remanded his claim of entitlement to service connection for sleep apnea. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court) to the extent the Board denied service connection for a neck disability. While the case was pending, in June 2020, the parties agreed to a joint motion for partial remand (JMPR). The matter has been returned to the Board. 1. Entitlement to service connection for obstructive sleep apnea is remanded. The Veteran contends he is entitled to service connection for obstructive sleep apnea. In its October 2019 remand, the Board directed a medical examiner to address the Veteran’s contentions that his sleep apnea had been documented as early as the 1980s and that an in-service septoplasty did not address his sleep issues. In sum, the Board found a prior VA examination report (dated in December 2016) failed to provide an adequate rationale for its negative findings as it did not meaningfully address the Veteran’s contentions. The Veteran was afforded a VA examination in December 2019. The report shows the examiner concluded the Veteran’s sleep apnea was not related to service; by way of rationale, the examiner stated the Veteran’s sleep apnea was “not caused by service or service connected conditions”; opined his deviated septum was not “clinically significant” and thus could not cause his obstructive sleep apnea; and stated that while a large percent of people with sleep apnea snore, not all snorers have obstructive sleep apnea. The Board finds this explanation inadequate for several reasons. First, the Veteran pointed out in a September 2020 statement (in which he contested the December 2019 VA examiner’s findings in myriad ways) that the comment regarding his deviated septum being “clinically insignificant” was inconsistent with a prior medical report, specifically an August 2011 record in which an ear, nose, and throat specialist stated the Veteran had a left deviated septum which was 60-70 percent obstruction—and which was, in fact, significant. The Veteran further noted he had a “very visible deviation” which The Board also finds the December 2019 opinion to be inadequate because it fails to address the lay evidence of record regarding the nature and onset of the Veteran’s in-service snoring and sleeping trouble. In his September 2020 statement and elsewhere, the Veteran vehemently contends he developed a “violent” snoring problem in service. He has submitted numerous supporting statements from his wife, commanding officer, and acquaintances. While the December 2019 VA examination report contains lengthy descriptions of several of the pertinent lay statements of record, it is not at all clear from the actual nexus opinion that the examiner incorporated these statements into the analysis of whether the Veteran’s sleep apnea began in service. The examiner’s statement that sufferers of sleep apnea snore but not all snorers have sleep apnea does not constitute sufficient analysis of the specifics of the Veteran’s case. The Veteran argued the examiner gave “zero weight” to the lay descriptions of his symptoms. The Board agrees. As a final matter, the Veteran noted in another September 2020 letter that it did not appear the RO had considered the additional evidence he submitted in support of his claim. Indeed, the most recent Supplemental Statement of the Case, dated in September 2020, does not state that his additional statements and argument were considered. As such, additional development and readjudication is needed. See 38 C.F.R. § 19.31. For these reasons, the Board is unable to find that its prior remand directives have been complied with. Accordingly, a remand is in order to provide the Veteran an updated VA examination and opinion. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a Board remand confers upon the Veteran, as a matter of law, the right to compliance with the Board’s remand order). 2. Entitlement to service connection for a neck disability, to include degenerative disc disease, is remanded. The Veteran contends he is entitled to service connection for a neck disability, arguing he has had continuous neck pain since service. Notably, his service treatment records reflect he was treated for a neck strain in 1979; at his Board hearing, he testified that he has had pain since that injury. The Veteran last underwent a VA examination for his disability in November 2013. The report reflects the examiner provided minimal rationale in support of a negative nexus opinion, stating the Veteran’s degenerative disc disease was merely “[a] condition of aging.” As noted in the June 2020 JMPR, the Board, in denying the claim, did not adequately address the Veteran’s contentions of continuity of symptomatology since service. In accordance with the JMPR, the Board finds a remand is in order so that an examiner may address the contentions continuity of symptomatology. See 38 C.F.R. § 3.303(b). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an examiner to determine the nature and etiology of the Veteran’s obstructive sleep apnea by an examiner who has not previously examined him. The examiner is asked to review the claims file and provide the following information: (a) State whether the criteria for a diagnosis of are met. (b) Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea was incurred in or otherwise related to the Veteran’s service. (c) If it is determined that there is another likely etiology for the Veteran’s sleep apnea, that should be stated. (d) The examiner is specifically asked to comment on the Veteran’s contentions that his in-service septoplasty did not correct his sleep issues. (e) The examiner is specifically asked to comment on the Veteran’s very specific contentions (including, most recently, a September 2020 statement) that he experienced episodes of excessive and “violent” snoring in service which presaged his eventual sleep apnea diagnosis. The examiner should also discuss all other pertinent lay statements provided by the Veteran’s spouse (see, e.g., September 2015 statement), commanding officer (see March 2020 statement), and acquaintances (see, e.g., September 2020 statement) attesting to the in-service onset of snoring problems and other symptoms. The examiner must specifically incorporate analysis of these lay statements into any opinions provided regarding the etiology of the Veteran’s obstructive sleep apnea. 2. Schedule the Veteran for a VA examination by an examiner to determine the nature and etiology of the Veteran’s neck disability, to include degenerative disc disease. The examiner is asked to review the claims file and provide the following information: (a) State whether the criteria for a diagnosis are met. (b) Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s neck disability was incurred in or otherwise related to the Veteran’s service. (c) If it is determined that there is another likely etiology for the Veteran’s neck disability, that should be stated. (Continued on the next page)   (d) The examiner is specifically asked to comment on the Veteran’s contentions that he had multiple in-service neck injuries and has experienced continuous symptoms since service and up to current day. The examiner should opine as to whether these statements reflect manifestations of a neck disability in service, to include degenerative disc disease, that have been continuous to the present day. The examiner must specifically incorporate analysis of these lay statements into any opinions provided regarding the etiology of the Veteran’s neck disability, to include degenerative disc disease. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Ryan, 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.