Citation Nr: 21023917 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 17-32 303 DATE: April 21, 2021 REMANDED Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Army from April 1981 to April 1984. In October 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board of Veterans’ Appeals (Board) hearing. A transcript of the hearing is of record. In March 2019, the Board remanded the issues on appeal for further evidentiary development. Entitlement to service connection for a cervical spine disability and sleep apnea The Veteran contends that his current cervical spine disability, diagnosed as degenerative disc disease, originates from an in-service neck injury. He also contends that his sleep apnea first developed in service. At his Board hearing, he testified (along with his spouse) that he has had ongoing neck and sleep-related symptoms since his discharge from service. He described an incident in service in which he appeared to fall asleep while driving a car, which he attributed to sleep apnea. (His service treatment records note problems with insomnia.) He also testified that while serving in Germany he sometimes experienced pain and stiffness in his neck, which he self-treated with rest and aspirin, and that he experienced locking and pain in the neck once or twice per year beginning shortly after his separation. In March 2019, the Board instructed the Agency of Original Jurisdiction (AOJ) to schedule the Veteran for VA examinations to evaluate his claims. In particular, the Board directed examiners to provide nexus opinions with consideration of the Veteran’s lay assertions in support of his claims. Regarding the Veteran’s cervical spine disability, the Board directed an examiner to “specifically discuss the Veteran’s testimony (which can be found in his Board hearing transcript) that he sustained a neck injury in service with fairly regular neck pain and locking thereafter, up to the present day.” As to the Veteran’s sleep apnea, the Board similarly directed an examiner to “discuss the Veteran’s testimony (provided at his Board hearing) that he experienced sleeping problems in service, including one incident where he claimed to have fallen asleep while driving,” as well as “the Veteran’s reports of insomnia in service.” In response, the AOJ afforded the Veteran examinations in November 2019, after which the examiners provided negative nexus opinions regarding both claimed disability. Unfortunately, the Board finds that these opinions are inadequate. On review, both opinions rely solely on the lack of documentation of sleep- or neck-related symptoms in service. In addition, there is no substantive discussion of the Veteran’s contentions, to include his descriptions of in-service symptoms. As such, updated VA examinations must be provided to ensure VA’s duty to assist the Veteran is satisfied. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (noting lay evidence concerning the onset of symptoms, if credible, is competent, regardless of the lack of contemporaneous medical evidence); Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a Board remand confers upon claimants, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand). The matters are REMANDED for the following action: 1. Obtain all outstanding VA medical records pertaining to the Veteran, to include all records of treatment dating from July 2020 to the present 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s cervical spine disability, to include degenerative joint disease. The clinician must opine whether it is at least as likely as not that such disability was incurred or aggravated in service, or is otherwise related to service. The clinician must specifically discuss the Veteran’s testimony (which can be found in his Board hearing transcript) that he sustained a neck injury in service with fairly regular neck pain and “locking” thereafter, up to the present day. A detailed rationale must be included in support of all opinions provided. (Continued on the next page)   3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s sleep apnea. The clinician must opine whether it is at least as likely as not that such disability was incurred or aggravated in service, or is otherwise related to service. The clinician must specifically discuss the Veteran’s testimony (provided at his Board hearing) that he experienced sleeping problems in service, including one incident where he claimed to have fallen asleep while driving. The clinician must also discuss the Veteran’s reports of insomnia in service. A detailed rationale must be included in support of all opinions provided. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Minot, 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.