Citation Nr: 21010428 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 14-28 581 DATE: February 24, 2021 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran had active duty service from June 1991 to November 1991, from February 2003 to August 2003, and from January 2012 to February 2014. This appeal comes to the Board of Veterans’ Appeals (Board) from a rating decision dated June 2011 issued by a Department of Veterans Affairs (VA) Regional Office. The Veteran timely appealed. The Veteran’s appeal has previously been before the Board. In June 2019, the Board remanded the Veteran’s claim to the Agency of Original Jurisdiction for additional development. Entitlement to service connection for sleep apnea, to include as secondary to PTSD, is remanded. The Veteran contends that his sleep apnea was aggravated during his January 2012 to February 2014 period of active duty military service. Alternatively, he contends that his sleep apnea is secondary to his service-connected PTSD. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives. In its June 2019 remand, the Board directed that a VA medical opinion be obtained regarding the etiology of the Veteran’s sleep apnea. The Board remand noted: “the evidence shows that the Veteran was diagnosed with sleep apnea prior to his most recent period of active service, and it was noted on his pre-deployment documents in 2011. However, the Service Treatment Records document complaints of and treatment for sleep apnea during the period of active service from 2012 to 2014.” On remand, the examiner was to specifically address four issues. The first issue the examiner was to address was whether it was clear and unmistakable that any increase in the Veteran’s sleep apnea during his period of active service from January 2012 to February 2014 was due to the natural progress of the condition. The examiner was also asked to specifically address whether it was at least as likely as not (50 percent probability or greater) that the Veteran’s sleep apnea was incurred in or otherwise related to the Veteran’s military service during any of his prior periods of active service (1991, 2003). Next, the examiner was asked to address whether it was at least as likely as not (50 percent probability or greater) that the Veteran’s sleep apnea was proximately due to (i.e., caused by) his service-connected PTSD with alcohol dependence. Lastly, the examiner was asked to address if it was at least as likely as not (50 percent probability or greater) that the Veteran’s sleep apnea had been aggravated beyond its natural progression by his service-connected PTSD with alcohol dependence. The examiner was to provide a complete rationale for all conclusions. In November 2019, a VA examiner provided opinions to answer the second, third, and fourth questions. He provided rationales to support those opinions. However, the question of aggravation of the pre-existing disability during the January 2012 to February 2014 period of active duty service was not addressed at all. The June 2019 Board remand specifically pointed out that the Veteran’s service treatment records (STRs) document complaints of and treatment for sleep apnea during the period of active service from 2012 to 2014, which the VA examiner did not address. Given that there was not substantial compliance with the Board’s June 2019 remand instructions, remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the matter is REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician. It is an accepted fact that the Veteran’s sleep apnea pre-existed his period of active duty service from January 2012 to February 2014. The reviewer should answer the following: (a.) Was there a worsening of the sleep apnea disability during the period of active service from January 2012 to February 2014? (b.) If yes, is it clear and unmistakable (undebatable) that the worsening was due to the natural progress of the condition? The examiner must discuss complaints of and treatment for sleep apnea noted in his STRs during the period of active service from 2012 to 2014. Note: The term “clear and unmistakable” means that the evidence is undebatable. To contrast, the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. The examiner is asked to apply the higher standard of clear and unmistakable to this question. A rationale must be provided to support all opinions. LAURA E. COLLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Bristor 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.