Citation Nr: 21009348 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 17-02 532 DATE: February 22, 2021 REMANDED Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. REASONS FOR REMAND The Veteran had active service in the United States Navy from August 1979 to November 1982. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. A videoconference Board hearing was held in November 2019 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. In January 2020, the Board remanded the case for additional development. 1. Entitlement to service connection for a cervical spine disability is remanded. The Veteran contends that he incurred a cervical spine disability during active service. He testified before the Board in November 2019 that there were additional VA outpatient treatment records relevant to this claim which had not yet been obtained and associated with his claims file. The United States Court of Appeals for Veterans Claims (Court) has held that VA is on constructive notice of all documents generated by VA, even if the documents have not been made part of the record in a claim for benefits. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Thus, in January 2020, the Board directed the Agency of Original Jurisdiction (AOJ) to obtain the Veteran’s updated VA treatment records and associate them with the file. Following the Board’s January 2020 remand, the AOJ obtained VA treatment records from the Jackson, Mississippi VA Medical Center from May 2017 to February 2020. Unfortunately, the AOJ did not obtain any prior records from prior to 2013. Based on evidence in the file, the Veteran has sought treatment from the VA since at least January 2001 in Augusta, Georgia, and likely earlier. Therefore, the Board finds that there has not been substantive compliance with the Board’s January 2020 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order). Per Stegall, the Board errs when it fails to ensure compliance with its previous remand orders. Here, as there has been no substantive compliance with the Board’s July 2018 directives, further remand is necessary to obtain the Veteran’s VA treatment records. 2. Entitlement to service connection for a right knee disability is remanded. The Veteran also contends that he incurred a right knee disability during active service. He alternatively contends that his right knee disability existed prior to service and was aggravated (permanently worsened) by service. The December 2014 VA examiner opined that it was less likely than not that the Veteran’s right knee, which existed prior to service, was aggravated by service. The Board remanded the issue for an addendum opinion concerning whether the Veteran’s right knee disability is related directly to active service. The post-remand March 2020 addendum opinion and the December 2014 opinion both refer to records from the VA Augusta, Georgia Medical Center beginning in 2001 that have not been associated with the file. Thus, the Board cannot adequately review those opinions. For the reasons discussed above, this issue must also be remanded to obtain the Veteran’s VA treatment records. 3. Entitlement to service connection for OSA is remanded. The Veteran finally contends that he is entitled to service connection for OSA. At his November 2019 Board hearing, the Veteran testified that his sleep apnea began in service when his sleep was interrupted for him to go on deck for the planes and that the exhaust of the planes was a problem. He testified that his roommates would wake him up because his snoring was so loud that it would keep them awake. He stated that his sleep problems began in 1981 during his second tour of duty on the USS Firestorm. The Veteran’s wife testified that she noticed the Veteran’s sleep problems about six years before the hearing. He would fall asleep during the day and she noticed that he would stop breathing while he was sleeping. At his July 2016 hearing before a decision review officer, the Veteran testified that the treating physician at the VA clinic indicated to him that his sleep apnea was related to his service. The Board remanded this issue in January 2020 for the AOJ to schedule the Veteran for an examination to determine the nature and etiology of his OSA. The Veteran was afforded an examination in January 2020. The examiner opined that the Veteran’s OSA was less likely than not caused by service. The succinct rationale was that the Veteran’s service treatment records are negative for complaints of sleep apnea during service. It is well settled that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an “absolute bar” to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) (“Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms”). The Board finds the January 2020 examination inadequate. Once VA provides an examination in a service connection claim, the examination must be adequate, or VA must notify the veteran why one will not or cannot be provided. Id. at 311. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. Appl 120, 124 (2007). Here, the examiner again did not address the Veteran’s reported history and in-service symptoms. Rather, she simply relied on the absence of records and the time between service and the Veteran’s OSA diagnosis. Therefore, the Board finds that the examination does not substantially comply with the Board’s remand order. See Stegall, supra. The matters are REMANDED for the following action: 1. Conduct appropriate development to associate the Veteran’s VA treatment records with the file, specifically any VA treatment records from 2001 to 2012, including records from the Augusta, Georgia VA Medical Center beginning in January 2001. All efforts to obtain the records should be documented in the claims file. If such records are unavailable, the claims folder should be clearly documented to that effect and the Veteran must be notified in accordance with 38 C.F.R. § 3.159(e). 2. Send the claims file and a copy of this REMAND to the VA examiner who conducted the Veteran’s January 2020 obstructive sleep apnea disability benefits questionnaire (DBQ), if she is available, or another appropriate clinician and request an addendum opinion to this DBQ. The clinician should review the claims file and provide a detailed rationale for all opinions. The clinician is advised that the lack of contemporaneous records documenting complaints of or treatment for OSA, alone, is insufficient rationale for a medical nexus opinion. The clinician is reminded that the Veteran’s statements about his OSA symptoms are credible. 3. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals James Morgan, Attorney for the Board Department of Veterans Affairs 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.