Citation Nr: 21007876 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 18-26 978 DATE: February 11, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1968 to November 1969 in the United States Army, to include service in the Republic of Vietnam. He also served subsequently in the National Guard and Reserves. His exposure to herbicide agents is presumed. 38 C.F.R. § 3.307(a)(6)(iii). This case comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Board remanded the issues of entitlement to service connection for sleep apnea and hypertension. During remand status, a November 2020 rating decision granted service connection for hypertension. As such, as to hypertension, there is no case or controversy for the Board to adjudicate. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). As explained below, there has not been substantial compliance with the Board’s prior remand directive as to the claim of service connection for sleep apnea. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for OSA is remanded. The Veteran contends that his OSA manifested as a result of service to include as due to presumed exposure to herbicide agents to include Agent Orange. He submitted statements from his spouse where she described observing sleep impairment in her husband since 1991. See VA Form 21-4138 (February 2015). Pursuant to the Board’s October 2018 remand, the originating agency obtained an August 2020 VA examination and opinion addressing the Veteran’s sleep apnea. The August 20202 VA medical opinion reflects that it was less likely than not that the Veteran’s OSA is the result of active service. The rationale was that “there is no evidence on service treatment record neither there is a pathophysiological relationship between sleep apnea and Veteran’s presumed herbicide exposure as there is no evidence on medical literature.” The Board finds that the August 2020 VA medical opinion (VAMO) is inadequate for the following reasons. First, although the opinion notes that medical literature does not support a positive nexus between sleep apnea and exposure to herbicide agents, it does not provide the Board a reasoned rationale explaining why the lack of medical literature supporting nexus is dispositive of a causal relationship between herbicide agent exposure and the development of sleep apnea; or identify the literature reviewed; or discuss facts specific to the Veteran vis-à-vis the medical research. See Bailey v. O'Rourke, 30 Vet. App. 54, 60 (2018) (reliance on the absence of medical literature supporting nexus without discussing the specific facts of the case renders an opinion inadequate). Second, the opinion relied on the absence of documented in-service complaints or findings for sleep apnea. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Service connection may be granted for disability diagnosed after service when all the evidence, including that pertinent to service establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). Third, the opinion does not reflect consideration of the Veteran's lay statements. See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) (“the VA examiner’s failure to consider [a veteran’s] testimony when formulating her opinion renders that opinion inadequate.”). Here, there is a suggestion by the Veteran that he had symptoms of snoring during his active service, which represent the onset of later diagnosed sleep apna. This theory was not addressed by the opinion. The Veteran points to his wife’s report that the Veteran had snored since at least 1991 when they came together as a couple. However, the Board observes that, in 1991, the Veteran was not on active duty status at that time and he was not diagnosed with sleep apnea until a 2014 sleep study. It is noted that “Active military, naval, or air service” includes active duty and any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; or any period of inactive duty training (INACDUTRA) in which the individual concerned was disabled or died from an injury, though not also disease, incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). Reserve and National Guard service generally means ACDUTRA and INACDUTRA. ACDUTRA is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). That usually includes two weeks of annual training and/or an initial period of training. INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101(23); 38 C.F.R. § 3.6(d). That usually indicates weekend drills or training. In this case, the VA medical obtained is inadequate, as explained above. A medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record. See Stefl v. Nicholson, 21 Vet. App. 102, 124-25. Also, “[A] medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.” Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Given the above, and to ensure VA has met its duty to assist, remand is necessary to obtain a VA examination and medical opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (when VA provides the Veteran with an examination in a service connection claim, the examination must be adequate). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his sleep apnea. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. (1) Detail the Veteran’s reported symptoms in service and thereafter, including the nature, onset, progression and severity of his reported symptoms of sleep apnea. (2) Clarify from the Veteran on obtaining history whether he snored during active duty between April 1968 to November 1969. (3) If there is any medical reason to accept or reject the proposition that any of his reported symptoms during his active service from April 1968 to November 1969 represented the onset of his current sleep apnea disability during his active service, this should be noted. The examiner should expressly opine on: (a) Whether sleep apnea at least as likely as not had its onset during active duty from April 1968 to November 1969. Consider the Veteran’s spouse’s report that the Veteran snored since at least 1991. b) Whether sleep apnea at least as likely as not is etiologically related to an in-service injury, event, or disease, to include conceded herbicide agent exposure during his active duty. NOTE (1): A negative opinion cannot be based solely on the fact that sleep apnea is not on the list of diseases enumerated as presumptively associated with exposure to herbicide agents in VA regulations. NOTE (2): A negative opinion cannot be solely based on the absence of documented complaints during the Veteran’s active duty from April 1968 to November 1969. NOTE (3): A negative opinion cannot be based solely on the absence of medical literature supporting nexus between sleep apnea and herbicide agent exposure without discussing the specific facts of this Veteran vis-à-vis the literature. A complete rationale for the medical opinion is required. The examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). 2. Ensure that the VA medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. A. Macek, 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.