Citation Nr: 21014151 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 10-47 052 DATE: March 11, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. REASONS FOR REMAND The appellant served on active duty in the United States Navy from February 2000 to April 2003. This matter comes before the Board of Veterans’ Appeals (Board) from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2017 and October 2017, the Board remanded the issue of entitlement to service connection for sleep apnea. In January 2019, the Board denied service connection for, inter alia, sleep apnea. The appellant appealed this decision to the United States Court of Appeals for Veterans Claims (Court). A February 2020 Court order granted a Joint Motion for Partial Remand (JMPR) and the matter to the Board for readjudication consistent with the JMPR. In July 2020 and December 2020, the Board again remanded the appeal for further evidentiary development. However, as explained below, there has not been substantial compliance with the Board’s prior remand directives. In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the appellant’s assertions. Neither the appellant’s credibility nor any lack thereof should be presumed in this remand. Entitlement to service connection for obstructive sleep apnea is remanded. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). This matter was remanded in December 2020 to obtain a new VA medical opinion to address the etiology of the appellant’s obstructive sleep apnea. The examiner was instructed to discuss the appellant’s lay testimony describing a history of sleep problems beginning in service and continuing in the years following separation from service and opine whether the appellant’s reported symptoms, including difficulty falling and staying asleep, daytime sleepiness, snoring, and waking up unable to breathe, are consistent with obstructive sleep apnea. The examiner was also reminded that the absence of treatment for sleep apnea in service should not serve as the sole basis for a negative opinion. A January 2021 VA medical opinion was obtained. It concluded that it is less likely than not that the appellant’s OSA was incurred in or began during military service. The rationale was that: There is no medical evidence that the Veteran's OSA was incurred in or began during military service. Although the Veteran states that he has sleep difficulties for "6-7 years" along with difficulty falling asleep, daytime sleepiness, the STRs [service treatment records] are silent for any complaints of difficulty sleeping. The Veteran's records following service by private providers and the VAMC [Veterans Affairs Medical Center] are negative for any complaints of sleep difficulties. The available medical records are also negative for these complaints until 11/2009 except for the 12/4/2006 documentation noting the Veteran complained of difficulty sleeping due to his back condition. As the Veteran was not examined for his sleep complaints until 6 years after service, it is less likely than not that the Veteran's OSA was incurred in or began during military service. The Board finds that January 2021 VA medical opinion is inadequate for the following reasons. First, it does not explain why the gap in time between service and the OSA diagnosis is dispositive or otherwise relevant to the negative conclusion. Second, it appears to have dismissed without explanation the appellant’s lay report of in-service symptoms, which he believes represent the onset of later diagnosed OSA. For example, the opinion does not reflect consideration of the appellant’s reported in-service symptoms of daytime sleepiness during service or other post service symptoms. See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) ("the VA examiner's failure to consider [a veteran's] testimony when formulating her opinion renders that opinion inadequate."). Third, the opinion does not address the appellant’s theory that his reported in-service symptoms reflect the onset of his OSA. Fourth, the opinion relied solely on the absence of documentation of OSA and that he was “not examined for his complaints until 6 years after service.” An in-service diagnosis is not required to establish service connection. See Cosman v. Principi, 3 Vet. App. 503 (1992). Here, the medical opinion does not fully support the conclusion reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record. See Stefl v. Nicholson, 21Vet. App.102, 124-25. Moreover, it does not contain a reasoned medical explanation connecting the supporting data with the conclusion reached. See Nieves-Rodriguez v. Peake, 22Vet. App.295, 301 (2008). Of which, the medical opinion is deficient A medical opinion without sufficient rationale is inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304(2008) (“most of the probative value of a medical opinion comes from its reasoning”); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). Given the above, to ensure that VA has met its duty to assist, remand for another medical opinion is necessary to decide the appeal. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When a VA examination is provided or when a VA opinion is obtained, the VA must ensure that the examination or opinion is adequate). Accordingly, the matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding the etiology of the appellant’s obstructive sleep apnea. The medical opinion should: (a) identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s); and (b) consider and expressly address the appellant’s lay statements and theory that sleep apnea was first manifested in service. Detail the appellant’s reported symptoms in service and thereafter, including the nature, onset, progression and severity of his reported symptoms. If there is any medical reason to accept or reject the proposition that the appellant’s reported symptoms in service and thereafter represented the onset of his OSA, this should be noted. The clinician should opine on: Whether OSA at least as likely as not (50 percent or greater probability) had onset in service or is otherwise medically related to an in-service injury or disease. Although the appellant’s reported symptoms could possibly be attributed to any number of medical or situational causes, indicate whether in this specific case, his reported symptoms in service, and thereafter, are at least as likely as not consistent with the onset of obstructive sleep apnea in service. The opinion should reflect consideration of: (1) The appellant’s report that he experienced “6-7 years of sleep problems 4-6 nights per week,” during which he had “trouble falling asleep and wakes up 2 times,” “wakes up too early and feels he gets too little sleep,” feels “sleepy in the day,” “snores and wakes up unable to breathe,” and that he experienced trouble sleeping, and even snoring, during service, which he attributed to the sleeping conditions he experienced during his various tours. See e.g., November 2009 Neurology Consult, Sleep Study and February 2017 Appellate Brief (VSO IHP; Post remand Brief; Attorney Brief). (2) The appellant’s December 2018 report that he had daytime sleepiness during service. See e.g., December 2018 Appellate Brief (VSO IHP; Post remand Brief; Attorney Brief). NOTE (1): An adequate medical opinion may not rely solely on the absence documented complaints, treatment, or diagnosis in the appellants’ service treatment records. NOTE (2): Medical history provided by the appellant may be rejected only if there is a sound basis for doing so that is fully explained. The appellant is deemed competent to report his symptoms susceptible to lay observation, such as, daytime sleepiness, etc. 2. Ensure that the VA medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E.D. Anderson, 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.