Citation Nr: 21015215 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 15-30 809 DATE: March 16, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. REASONS FOR REMAND The Veteran had active service from December 1989 to February 1992. The Veteran’s DD 214 confirms that he served in Southwest Asia and that he received a Combat Action Ribbon. This case comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2014 Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) decision. In April 2020, the Board remanded the appeal to the AOJ for additional development. 1. Service connection for sleep apnea is remanded. In the April 2020 remand, the Board acknowledged competence of the Veteran’s sleep apnea complaints and symptoms. It was noted that at a November 2018 videoconference hearing the Veteran testified that during service, he had problems with tiredness and being motivated at his job, and that he had mentioned to doctors how he was feeling, his sleeping habits, and that he had gasping, and trouble sleeping and wakening. It is important to mention that lay statements may support a claim for service connection by supporting the occurrence of lay observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). A VA examination was requested by the Board to determine the etiology of the Veteran’s sleep apnea, including that the examiner acknowledge the Veteran’s competent sleep apnea symptoms and history that had been reported, and opine on whether his sleep apnea is related to environmental exposures that he was exposed to while in Southwest Asia. The examiner was also requested to provide a comprehensive report that included a complete rationale for any opinions and conclusions offered. In June 2020, at a VA in-person examination, the Veteran’s complaint history elicited by the examiner was limited to answering whether he had snoring or apneas during service. Any other competent history was not elicited or mentioned as directed by the Board. In addition, the examiner’s medical opinion did not include discussion of whether the Veteran’s sleep apnea is related to environmental exposures he sustained while in Southwest Asia. In a November 2020 addendum opinion requested by the AOJ to address prior examination deficiencies, it is absent for any supporting information, literature, or adequate rationale regarding the Veteran’s environmental exposure in Southwest Asia. The June and November 2020 medical opinions inadequately address the Veteran’s competent medical history he has reported as well as the etiological relationship, if any, between environmental exposures in Southwest Asia and his current sleep apnea as requested by the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that 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). Therefore, a VA examiner should issue an addendum medial opinion considering the Veteran’s competent complaints and symptoms and the etiology of the claimed sleep apnea, to include exposure to environmental hazards in South West Asia. 2. Service connection for GERD is remanded. The Board in the April 2020 remand acknowledges the Veteran’s competent gastrointestinal symptoms, and confirms his service in Southwest Asia and the Gulf War. Since a December 2014 medical examination report did not consider the Veteran’s history of possible exposure to hazards in the Gulf War, the Board determined that another medical opinion was required to more fully address whether the Veteran's current GERD was incurred in or otherwise etiologically related to his active duty and possible Gulf War service exposures. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology). A June 2020 VA medical opinion did not address the Veteran’s GERD and possible exposure to hazards in the Gulf War. In an October 2020 addendum opinion, the same examiner opined that the Veteran’s GERD “was at least as likely as not related to his complaints of symptoms since service but was less likely secondary to exposure to environmental hazards in “Southeast” Asia.” The examiner mentioned that there had been a review of Gulf War/ Southwest Asia exposure guidelines and review of standard medical literature. However, the reported literature in support of the opinion was not specified or indicated. The Board finds that the June and October 2020 medical opinions are conclusory and are absent for any supporting information or literature, and do not offer adequate rationale regarding any environmental exposure in Southwest Asia and its etiological relationship, if any, with the Veteran’s GERD. Stegall, supra. A VA examiner should issue an addendum opinion considering the etiology of the claimed GERD. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion, or examination if deemed necessary, from an examiner who has not previously opined on the matter if possible, to assess the nature and etiology of the Veteran’s sleep apnea disorder. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed sleep apnea disorder is etiologically related to the Veteran's active service, to include environmental exposures while stationed in Southwest Asia. The examiner is advised that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology and history must be specifically acknowledged and considered in formulating any opinions concerning the onset of his disability. (The examiner should consider and comment on the Veteran’s testimony from the November 2018 Board videoconference where he testified that during service, he had problems with tiredness and being motivated at his job, that he had mentioned to doctors how he was feeling, and his sleeping habits, and that he had gasping, trouble sleeping, and wakening.) If the examiner rejects the Veteran's reports regarding the onset of symptoms, the examiner must provide a medical reason for doing so. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. A full and complete rationale must be provided. The examiner should review the Veteran’s e-folder and complete copy of this remand. 2. Obtain an addendum medical opinion, or examination if deemed necessary, from an examiner who has not previously opined on the matter if possible, to assess the nature and etiology of the Veteran’s GERD disorder. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed GERD disorder is etiologically related to the Veteran's active service, to include environmental exposures while stationed in Southwest Asia. The examiner is advised that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology and history must be specifically acknowledged and considered in formulating any opinions concerning the onset of his disability. If the examiner rejects the Veteran's reports regarding the onset of symptoms, the examiner must provide a medical reason for doing so. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. A full and complete rationale must be provided. The examiner should review the Veteran’s e-folder and complete copy of this remand. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board William J. Jefferson III 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.