Citation Nr: 21013450 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 15-44 394 DATE: March 9, 2021 REMANDED Entitlement to service connection for a sleep disorder, to include insomnia and sleep apnea, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from September 1974 to September 1997. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a May 2019 Board videoconference hearing. A transcript of that hearing has been associated with the claims file. Entitlement to service connection for a sleep disorder, to include insomnia and sleep apnea, is remanded. This matter was last before the Board in October 2020, at which time it was remanded for a new VA examination. A Board remand confers upon an appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271; D'Aries v. Peak, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). When VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran was afforded a VA sleep disorder examination in November 2020. A diagnosis of obstructive sleep apnea was noted. The Veteran reported having difficulty falling and staying asleep that began in the mid-1970s. The examiner noted that the Veteran's service treatment record "does not show compelling evidence of sleep apnea or sleep condition that may have resulted in his current obstructive sleep apnea" and opined that it is less likely than not incurred during his service. Here, the examiner relied entirely on a lack of documented sleep symptoms and failed to discuss the lay evidence submitted by the Veteran. Further, the opinion is supported by a mere conclusion regarding the evidence, and not a rationale. As such, the Board finds this opinion is without probative value. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his sleep disorder. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the Veteran’s sleep disorder at least as likely as not related to service? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran’s description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? The examiner’s attention is invited to the July 2014 Notice of Disagreement in which the Veteran asserted that his claimed "insomnia otherwise specified as sleep apnea" "[was] in [his] service treatment records" and that he had sleep problems throughout his entire military career. The examiner’s attention is invited to the June 2019 buddy statement from P. Wilhite, who served with the Veteran from 1993 to 1996 at Camo Lejeune, and stated that he would notice the Veteran "falling asleep numerous times at his deck" and that he "would sometimes fall asleep while [they] were conversing". He further stated that the Veteran would sometimes fall asleep behind the wheel. The examiner’s attention is invited to the June 2019 buddy statement from R. McKnight, who served with the Veteran from 1982 to 1983 as drill instructors at Parris Island, and stated that the Veteran would fall asleep in meetings or while talking. The examiner’s attention is invited to the June 2019 buddy statement from R. Hamock, who served with the Veteran at Camp Lejeune from 1980 to 1982 and stated that he witnessed the Veteran falling asleep behind the wheel on several occasions. He further stated that the Veteran would fall asleep during conversations. The examiner’s attention is invited to the June2019buddy statement from P. Jenkins, who served with the Veteran, and stated that the Veteran was "[unable] to remain awake for any significant amount of time". 2. After completing the requested actions, and any additional development deemed warranted, readjudicate the claims in light of all pertinent evidence and legal authority. If the benefits sought remain denied, furnish to the Veteran and his representative a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brian P. Keeley 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.