Citation Nr: 21024398 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 15-38 654 DATE: April 22, 2021 REMANDED Entitlement to service connection for a neck disorder is remanded. Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served honorably on active duty from June 1978 to September 1986. This appeal stems from a February 2015 rating decision by a Department of Veterans Affairs (VA) regional office (RO). 1. Entitlement to service connection for a neck disorder is remanded. The Board remanded the claim of entitlement to service connection for a neck disorder in March 2019 for further development, to include a VA examination with an etiological opinion. Pursuant to that remand, the Veteran was afforded a VA examination in January 2020. The examiner opined that the Veteran’s neck disorder was less likely than not related to the Veteran’s service, citing a lack of in-service records documenting treatment and a 25-year gap in between the Veteran’s service and documentation of treatment. The Board finds this opinion inadequate, however, as the examiner failed to address the Veteran’s and his wife’s lay statements supporting his contention of an in-service neck injury and continuity of symptoms thereafter. When VA undertakes to obtain an examination or opinion it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical opinion or examination is considered adequate “where it is based on consideration of the veteran’s prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board’s evaluation of the claimed disability will be a fully informed one.” Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Board is unable to make a fully informed evaluation based on the opinions of record, and regrettably, remand is again necessary for proper development. A remand by the Board imposes upon the Secretary of the VA a concomitant duty to ensure compliance with the terms of the remand. Where the remand orders are not complied with, the Board errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Because there was not complete or substantial compliance with the remand instructions, the Board is compelled to remand the appeal for appropriate adjudicatory consideration of his claims. Id. 2. Entitlement to service connection for sleep apnea is remanded. The Board remanded the claim of entitlement to service connection for sleep apnea in March 2019 for further development, to include a VA examination with an etiological opinion. Pursuant to that remand, the Veteran was afforded a VA examination in December 2019. The examiner opined that the Veteran’s sleep apnea is less likely than not related to service. By way of rationale, however, the examiner recounted a brief medical history of the Veteran’s sleep apnea, noting there was no sleep study conducted while in service and stating that “[m]any other sleep disordered conditions may also have sign or symptoms of sleep apnea.” The examiner stated that there was “no found evidence for any … symptoms indicative for sleep apnea while [the Veteran] was in service.” The Board finds the December 2019 opinion inadequate as it primarily relies on the absence of an in-service sleep study and fails to adequately address the lay statements provided by the Veteran and his wife alleging symptoms of a sleep disorder, to include heavy snoring and restless sleep in service. When VA undertakes to obtain an examination or opinion it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical opinion or examination is considered adequate “where it is based on consideration of the veteran’s prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board’s evaluation of the claimed disability will be a fully informed one.” Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Board is unable to make a fully informed evaluation based on the opinions of record, and regrettably, remand is again necessary for proper development. Where the remand orders are not complied with, the Board errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Because there was not complete or substantial compliance with the remand instructions, the Board is compelled to remand the appeal for appropriate adjudicatory consideration of his claims. Id. The matters are REMANDED for the following action: 1. Obtain an addendum VA medical opinion from an appropriate medical provider to determine the nature and etiology of the Veteran’s neck disability. The entire claims file including this remand must be provided to the examiner, who must note his or her review of the file. If additional examination or telehealth interview is found to be necessary, such must be obtained. The examiner must provide a well-reasoned opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran’s neck disorder began in service or is otherwise etiologically related to his time on active duty. The examiner must specifically discuss the lay evidence of record alleging the Veteran’s current neck disorder is related to in-service incidents of weightlifting, a 1981 motor vehicle accident, and lifeguarding. The examiner is advised that the Veteran and his wife are competent to report observable history and symptoms, including neck pain both during service and thereafter, and that those reports must be specifically considered in formulating any requested opinion. If the examiner rejects the Veteran’s reports, the examiner must provide a rationale for doing so. If a requested opinion cannot be provided without resorting to speculation, the examiner should state whether there is additional information that could enable the examiner to provide the necessary opinion or whether the inability to provide the opinion was based on the limits of medical knowledge. 2. Obtain an addendum VA medical opinion from an appropriate medical provider to determine the nature and etiology of the Veteran’s sleep apnea. The entire claims file including this remand must be provided to the examiner, who must note his or her review of the file. If additional examination or telehealth interview is found to be necessary, such must be obtained. The examiner must provide a well-reasoned opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran’s sleep apnea began in service or is otherwise etiologically related to his time on active duty. The examiner must specifically discuss the lay evidence of record indicating that the Veteran experienced sleep disorder symptoms while in service, including trouble breathing, loud snoring and fatigue, witnessed by others. If the examiner determines that the Veteran’s reported in-service symptoms do not represent an in-service onset of sleep apnea, that opinion must be fully explained and reconciled with the evidence of record. The examiner is advised that the Veteran and his wife are competent to report observable history and symptoms, including heavy snoring and restless sleep both during service and thereafter, and that those reports must be considered in formulating any requested opinion. If the examiner rejects the Veteran’s reports, the examiner must provide a rationale for doing so. If a requested opinion cannot be provided without resorting to speculation, the examiner should state whether there is additional information that could enable the examiner to provide the necessary opinion or whether the inability to provide the opinion was based on the limits of medical knowledge. Caroline B. Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.N. Bush, 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.