Citation Nr: 21011837 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 19-06 765 DATE: March 2, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea, to include as due to a service connected disabilities and as due to exposure to herbicides, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from April 1954 to October 1978 with service in the Republic of Vietnam This matter comes before the Board of Veterans’ Appeals (Board) from a February 2018 rating decision of a Department of Veterans Affairs Regional Office (RO). Rating decision. In the Veteran’s February 2019, VA Form 9 Appeal to Board of Veterans’ Appeals he requested a Board video conference hearing; however, in July 2020 correspondence the Veteran withdrew his request for a Board hearing. Previously, the Veteran’s claim was before the Board in October 2020 and was remanded for additional development. However, as discussed below, the Board’s prior remand directives have not been substantially complied with, and as such the case is again before the Board and additional development is warranted. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for obstructive sleep apnea, to include as due to a service connected disabilities and as due to exposure to herbicides The Veteran contends that service connection is warranted for obstructive sleep apnea to include as due to his service connected disabilities and as due to herbicide exposure. Regrettably, another remand is warranted to comply with the prior remand directives. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 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. The Veteran was afforded a VA opinion in November 2020. The VA examiner noted a diagnosis of obstructive sleep apnea. The Veteran reported symptoms of sleep apnea since his service in Vietnam, and ongoing nightmares which awaken him. The examiner noted that the Veteran has been granted service connection for posttraumatic stress disorder (PTSD) and that he has a diagnosis of psychophysiological insomnia, a sleep disturbance related to stress and trauma. The examiner found that the Veteran’s PTSD is not the cause of his obstructive sleep apnea (OSA). The examiner noted that OSA is due to an abnormality of the posterior pharynx causing temporary blockage of the throat during sleep. OSA is a physical structural abnormality and as such is less likely than not having to do with service or environmental exposures in-service. The November 2020 examiner raised the issue of secondary service connection but failed to provide a thorough opinion specifically as to aggravation. Further, the Veteran’s representative in February 2021 correspondence has raised the issue that the Veteran’s sleep apnea has been aggravated by his service connected PTSD, and in the alternative that his sleep apnea has been caused or aggravated by his service connected coronary artery disease. The November 2020 VA examiner failed to fully address secondary service connection, in particular aggravation by PTSD or coronary artery disease and as such a remand is warranted for a supplemental VA opinion. The matter is REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s obstructive sleep apnea and whether: (a.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s obstructive sleep apnea was onset during active duty or caused by his service connected PTSD and/or coronary artery disease? (b.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s obstructive sleep apnea was aggravated (permanently worsened beyond its natural progression) by his service connected PTSD and/or coronary artery disease? Review of the entire claims file is required. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Attention is invited to the November 2020 VA examination noting that obstructive sleep apnea is due to an abnormality of the posterior pharynx causing temporary blockage of the throat during sleep. OSA is a physical structural abnormality and as such less likely to having to do with service or environmental exposures in-service. Further, the Veteran and his representative contend that his sleep apnea has been caused or aggravated by his service connected PTSD and/or his service connected coronary artery disease and that secondary service connection is warranted. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.R. Kardian, 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.