Citation Nr: 21015269 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 14-35 377A DATE: March 17, 2021 REMANDED Entitlement to service connection for sleep impairment, to include sleep apnea, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1965 to April 1968. In February 2018 and October 2019, the Veteran testified at Board hearings conducted before two separate Veterans Law Judges (VLJs). The law requires that a VLJ who conducts a hearing on appeal participate in any decision made on that appeal, and that the matter will be decided by a three-member panel of VLJs. See 38 U.S.C. § 7102; 38 C.F.R. § 20.707. The United States Court of Appeals for Veterans Claims (Court) has held that a Veteran is entitled to have an opportunity for a hearing before all Board members who will ultimately decide the appeal. Arneson v. Shinseki, 24 Vet. App. 379 (2011). The Board sent the Veteran a letter on June 11, 2020 notifying him of his opportunity to have another hearing before a third VLJ. The Veteran was notified that if he did not respond within 30 days, it would be assumed that he did not want an additional hearing and the Board would proceed in adjudicating the issue of service connection for a sleep impairment. The Veteran did not respond. This matter was before the Board in July 2020 when it was remanded to afford the Veteran a VA examination to determine the nature and etiology of his sleep apnea. The examiner was to provide opinions as to whether it was at least as likely as not that sleep apnea: (a) was related to an in-service injury, event, or disease; or (b) was caused or aggravated (permanently worsened beyond the natural progression) by a service-connected disability. The Veteran underwent a VA examination in December 2020, and the VA examiner provided negative opinions for direct service connection and aggravation by a service-connected disability. However, the examiner did not address whether sleep apnea was caused by a service-connected disability. In this regard, the Veteran maintains, in pertinent part, that his service-connected left knee strain and bronchitis and chronic obstructive pulmonary disease (COPD) have caused his sleep apnea. Because of the lack of compliance with the July 2020 remand, this matter must be remanded again to obtain an additional medical opinion. See Stegall v. West, 11 Vet. App. 268 (1998). The matter is remanded for the following action: Forward the Veteran’s claims file to an appropriate VA examiner who must review the claims file (to include this remand) and provide an addendum opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s sleep apnea was caused by his service-connected left knee strain or service-connected bronchitis and COPD. (Continued on the next page)   If the examiner determines that the requested opinion may not be provided without a physical examination of the Veteran, then such should be scheduled. The examiner must explain the rationale for any opinion given. If the examiner is unable to provide an opinion without resorting to speculation, he/she should so state and provide an explanation as to the reason(s) therefor. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals M. Mills Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Fletcher, Kathleen 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.