Citation Nr: 21013110 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 13-32 086 DATE: March 8, 2021 REMANDED Entitlement to a compensable rating for positional sleep-disordered breathing is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1972 to September 1974 and from March 1987 to April 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this matter for further development in February 2018, August 2019, and September 2020. Entitlement to a compensable rating for positional sleep-disordered breathing is remanded. Unfortunately, another remand is required as there has not been substantial compliance with the directives of the previous Board remands. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand confers upon the claimant, as a matter of law, the right to compliance with the remand directives); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance). In this regard, the September 2020 remand directed the RO to obtain a VA examination which would clarify whether the Veteran has ever used a continuous airway pressure (CPAP) machine, a dental Thornton adjustable positioner (TAP) device, and/or other breathing assistance appliance since May 1, 2011. The November 2020 examination report reflected that the Veteran only denied the current use of a CPAP, dental device, or breathing assistance appliance, and did not clarify whether any of these devices had been used since May 1, 2011. Additionally, the remand directed the examiner to assemble a history of symptoms the Veteran experienced as related to his sleep disorder and clarify which symptoms were properly attributed to his positional sleep-disordered breathing and which were attributable to his other disabilities, including service-connected posttraumatic stress disorder (PTSD) with insomnia and service-connected allergic rhinitis. The November 2020 examination report found that the Veteran’s PTSD with insomnia and allergic rhinitis appeared to be the cause of most of his symptoms but did not assemble a history of symptoms or opine which symptoms were attributed to which disability. Finally, in its September 2020 remand, the Board directed the RO to schedule an examination with a VA physician who has expertise in sleep medicine. The subsequent November 2020 VA examination and accompanying opinion were conducted by a family nurse practitioner with training in Reserve Health Readiness Program (RHRP) and Public Health Assessment (PHA), and a Master’s in Healthcare Administration (MHA). There is no indication that the November 2020 examination was conducted by a sleep specialist. Accordingly, the Board finds that an additional remand is necessary. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) with a VA physician who has expertise in sleep medicine to determine the nature and severity of his sleep-disordered breathing since May 1, 2011. The entire claims file and a copy of this remand must be made available to the examiner. The examiner must note in the report that the claims file has been reviewed. The examination should be reported on a VA Sleep Apnea DBQ. The examiner should clarify whether, and if so, when, since May 1, 2011, the Veteran has used a CPAP machine, a dental TAP device, and/or other breathing assistance appliance. The examiner should interview the Veteran and assemble a history of symptoms since May 1, 2011 that the Veteran experiences as being related to his sleep disorder, to include continuing daytime somnolence and/or respiratory failure. A summary of the interview must be included in the examination report. (Continued on the next page)   The examiner should clarify which symptoms identified are attributable to the Veteran’s positional sleep-disordered breathing and which are attributable to his service-connected PTSD with insomnia or his allergic rhinitis. Any symptoms that the examiner finds cannot be allocated to a single disability must be clearly identified in the examination report. A clear rationale should be reported for all conclusions and opinions. If the examiner cannot form the requested opinions without resorting to speculation, the reasoning and findings supporting that conclusion must be clearly set forth. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. M. Stedman, 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.