Citation Nr: 21014672 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 15-18 290 DATE: March 15, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served in the U.S. Army from September 1976 to September 1979. By way of history, this appeal returns to the Board of Veterans’ Appeals (Board) after a July 2019 Board decision remanded the case for further development. A Supplemental Statement of the Case (SSOC) was issued in July 2020. The case now returns to the Board. 1. Entitlement to service connection for sleep apnea is remanded. The Board finds its July 2019 remand directives were not substantially complied with and this case must be remanded under Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand, and that the Board itself commits error as a matter of law in failing to ensure this compliance). The Veteran contends that his diagnosed of obstructive sleep apnea (OSA) had its initial onset during his active service. There are no pertinent service treatment records documenting complaints, treatment, or diagnosis of OSA or any other chronic sleep disorder. He was diagnosed with sleep apnea in 2013 and that diagnosis was substantiated by a sleep study in February 2014. He separated from military service in 1979, representing a 34-year time gap from his diagnosis of sleep apnea in 2013. However, the Veteran’s wife asserts that for the past 32 years, since 1983, her husband has had trouble sleeping, asserting that he tosses, turns, snores, and stops breathing. See Wife’s February 2015 Statement in Support of Claim. The Veteran also provided another statement in support of his claim from lay witnesses observing his symptoms at a younger age, and indicated that he did not realize the severity of his symptoms at that time. See Friend’s February 2015 Statement in Support of Claim. The Veteran adds that he was told by people in bootcamp that he would stop breathing in his sleep. See Form 9 May 2015. He stated that he was afraid to disclose this to the boot camp cadre at the time. Id. He further related that his symptoms worsened over time, since separation. The Board acknowledges the statements from the Veteran and others describing his symptomology. Nevertheless, lay individuals are not competent to opine on the etiology of a complex medical condition such as sleep apnea. Layno v. Brown, 6 Vet. App. 465 (1994). Therefore, an adequate addendum opinion is to address the etiology of sleep apnea. The Veteran was afforded a VA examination in November 2014. The VA examiner stated that the Veteran’s claim for sleep apnea is less likely than not, less than 50 percent probability, incurred in or caused by the Veteran’s military service. The VA examiner found no link between the Veteran’s diagnosed medical condition and military service. See November 2014 VA Examination. No consideration was given to the lay symptoms reported by the Veteran and his spouse. Such reduces the overall probative value of the opinion. A July 2019 BVA remand order an addendum opinion regarding the etiology of the Veteran’s sleep apnea. This opinion was to consider the lay statements of onset of symptoms. As identified in the Veteran’s appeal brief, the examiner’s rationale applies an improper standard for service connection. The examiner states “[I]n my opinion, a greater than 50% probability cannot be demonstrated between claimed condition and in-service event(s), which makes the claimed sleep apnea condition less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness.” See December 2019 VA Examination. The evidentiary standard for service connection is not a preponderance of the evidence, but equipoise, that a condition need only be “at least at likely as not (a 50 percent OR greater),” to establish service connection. Therefore, the examiner’s reasoning applies the incorrect standard to service connection and is inadequate. Further, the examiner lists various risk factors for OSA but fails to apply them the Veteran’s specific facts and circumstances. The examiner does not explain how gaining about 50 pounds in the last 10 years relates to the observed symptoms by the wife as far back as 1983 or the significance, if any, of the Veteran’s wife and friends’ observations that the Veteran snoring and appearing to stop breathing. See id. As such, the December 2019 opinion failed to provide a rationale informing the Board of the examiner’s reasons as required by Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) and failed to comply with the July 2019 Board remand instructions. Therefore, the case must be remanded to correct these errors. See id.; Stegall, 11 Vet. App. 268. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate VA examination with a suitably qualified medical professional to determine the nature and etiology of the sleep apnea. A new examination should be scheduled if such is found to be necessary. After reviewing the claims file, the examiner MUST indicate: (a.) Whether it is as likely as not (at least a 50 percent probability or greater) that the Veteran’s OSA had its initial onset in service or is otherwise etiologically related to his active service. (b.) The examiner MUST address the reports of the Veteran’s spouse and buddy statement in support that the Veteran was observed tossing, turning, snoring, and stopping breathing since 1983, and the Veteran’s report that his bunkmates complained of him having similar symptoms in service. Rationale for the requested opinion must be provided. If the examiner cannot provide an opinion without resorting to mere speculation, provide an explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or the limits of current medical knowledge with respect to the question. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Boushehri, Darjush M. 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.