Citation Nr: 21022613 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 18-30 200 DATE: April 16, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The appellant served on active duty in the United States Marine Corps from December 2006 to June 2007, from December 2007 to January 2009, and from June 2010 to August 2011. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part denied service connection for sleep apnea. That decision was appealed in a notice of disagreement (NOD) received by VA in January 2016. A Statement of the Case (SOC) was issued by VA in May 2018. VA received the appellant’s Substantive Appeal (Form 9) in May 2018, perfecting the appeal and requesting a videoconference hearing before the Board. The appellant appeared before the undersigned Veterans Law Judge for a hearing in December 2019. A transcript of that hearing has been added to the record. This claim was previously remanded in a March 2020 Board decision to obtain a VA examination and medical opinion. A Supplemental Statement of the Case (SSOC) was issued by VA in December 2020. 1. Entitlement to service connection for sleep apnea is remanded. The appellant contends that he developed the symptoms of sleep apnea when he was on active service. He asserts that during his last deployment, he was told by his fellow service members that he was a very loud snorer and that he would wake up from sleep gasping for air. He also asserts that he currently cannot sleep more than four hours a night and has been prescribed a CPAP machine. Alternatively, the appellant contends that his service-connected posttraumatic stress disorder (PTSD) at least as likely as not caused his sleep apnea or aggravated his sleep apnea beyond its natural progress. See Appellant’s December 2019 hearing transcript. While the Board greatly regrets further delay, after a review of the record, the Board finds that remand is necessary to obtain an addendum VA medical opinion. Following the Board’s March 2020 remand, the appellant underwent a VA examination in December 2020. After a review of the appellant’s medical records and a physical examination, the examiner opined that it was less likely as not that sleep apnea was secondary to, proximately due to, or aggravated beyond its natural progress by the appellant’s service-connected PTSD. The examiner offered as a rationale that “there is no direct pathophysiologic relationship between the sleep apnea condition and the PTSD condition.” Further, the examiner offered that “[r]ecords did not show any evidence of any signs or symptoms that showed the condition was indeed aggravated by the service-connected conditions.” However, the examiner failed to address the appellant’s contentions that his current disability developed while he was on active duty. The examiner did not discuss, or even mention, the appellant’s reports that his symptoms of snoring, daytime fatigue, and difficulty breathing while sleeping began while he was deployed on active duty. The examiner had been ordered by the Board in its March 2020 remand to address this contention and theory of direct service connection. Compliance with remand directives by the originating agency is not optional or discretionary. The Board errs as a matter of law when it fails to ensure remand compliance. See Stegall v. West, 11 Vet. App. 268 (1998). The Board finds that the examiner’s decision fails to substantially comply with the Board’s March 2020 remand instructions, as it does not address whether the appellant’s sleep apnea at least as likely as not began while the appellant was on active service. As such, remand is necessary to correct this error. On remand, the examiner must address the appellant’s contentions that he developed sleep apnea, as shown by his reported symptoms of snoring, daytime fatigue, and waking up gasping for air, prior to his separation from active service. The examiner must discuss the appellant’s report of symptoms on his March 2011 Post-Deployment Health Assessment, in which he endorsed symptoms of problems sleeping or still feeling tired after sleeping, increased irritability, and trouble remembering things. The examiner is reminded that the fact the appellant was not diagnosed with sleep apnea in service is not dispositive of his sleep apnea having developed during active service or being otherwise related to an event that occurred in service. The examiner should be reminded that “[s]ervice connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service.” 38 C.F.R. § 3.303(d). The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician which answers the following: Did the appellant’s sleep apnea at least as likely as not develop during a period of active service? Is the appellant’s sleep apnea at least as likely as not otherwise related to an event or injury which occurred during the appellant’s active service? (Continued on the next page)   The examiner must review the claims file, and must address both the appellant’s contentions at his December 2019 Board hearing that he was told by fellow service members while on deployment that he snored loudly and would wake up gasping for air, and his March 2011 Post-Deployment in which he endorsed symptoms of “problems sleeping or still feeling tired after sleeping,” and “sleep problems.” The examiner is reminded that an in-service diagnosis of a disease or condition is not required by VA regulation for an award of service connection, as service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In providing the requested opinion, the examiner must consider the appellant’s description of his in-service symptoms as well as his post-service 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 current disability, this should be noted. Stated another way, do the appellant’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the appellant’s reports generally inconsistent with medical knowledge or implausible? K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Kleponis, Associate 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.