Citation Nr: 21026434 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 16-32 567 DATE: May 3, 2021 ORDER Entitlement to service connection for a chronic sleep disorder is denied. REMANDED Entitlement to service connection for a respiratory disorder, to include as a result of in service exposure to herbicides or as secondary to a service-connected disability, is remanded. Entitlement to service connection for a kidney disorder, to include as a result of in service exposure to herbicides, is remanded. FINDING OF FACT The preponderance of the evidence of record is against a finding that the Veteran has had a diagnosed chronic sleep disorder at any time during the appeal. CONCLUSION OF LAW The criteria for service connection for a chronic sleep disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1969 to June 1971. This current matter comes to the Board of Veterans' Appeals (Board) on appeal from a October 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in November 2018, at which time it was remanded for further development. Service connection for a chronic sleep disorder Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for chronic disabilities if such is shown to have been manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C. §§ 1101, 1113; 38 C.F.R. §§ 3.307, 3.309. The existence of a current disability is the cornerstone of a claim for VA disability compensation. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The presence of a chronic disability at any time in the claim process can justify a grant of service connection, even if the disability has since resolved or the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). VA administers the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102. A remand by the Board confers on the claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessities remand for corrective action. Id. Substantial compliance with the remand order, not strict compliance, is required. Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1990). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Stegall, 11 Vet. App. at 271. In November 2018, the Board remanded this matter to obtain a VA examination addressing the nature and etiology of any chronic sleep disorder the Veteran may have. An examination and opinion were obtained in March 2020 and August 2020, respectively, and the Board finds that there has been substantial compliance with this portion of the Board's remand directives. Stegall, 11 Vet. App. at 271. The Veteran contends that he has a sleep disorder related to his service. However, after a thorough review of the evidence of record, the Board concludes that he does not have a current sleep disorder or other sleep disability. Initially, and in this regard, the Board notes that post-service medical records associated with the file do not reflect a diagnosis of, or treatment for, a sleep disorder. Also, the Veteran's service treatment records (STRs) do not document any complaint of, or treatment for, a sleep disorder. On the Veteran's entrance report of medical history in February 1969, he reported frequent nightmares, but no defects were noted on his entrance examination. His STRs do not otherwise contain any reports of a sleep disorder during service. Following the November 2018 Board remand, the Veteran was afforded a VA examination in March 2020, and a VA medical opinion was obtained in August 2020. The November 2018 Board remand specifically requested that the examiner address whether the Veteran has a currently diagnosed sleep disorder that is separate and distinct from his service-connected unspecified depressive disorder, or whether his sleep complaints are symptoms of his psychiatric disorder. In March 2020, the Veteran was accorded a mental disorders examination, and, in that examination report, the examiner indicated that the Veteran did not report significant sleep problems. In fact, at that examination, the Veteran reported sleeping "a lot," falling back to sleep easily if he wakes up, and often napping during the day. A VA medical opinion was obtained in August 2020 that addressed the nature and etiology of the Veteran's contended sleep disorder. After reviewing the claims folder, the examiner indicated that the Veteran does not meet the diagnostic criteria for a sleep disorder and that he does not have a separate and distinct sleep disorder. The threshold requirement for service connection is competent evidence of the existence of the claimed disability at some point during the appeal. McClain v. Nicholson, 21 Vet. App. 319 (2007), Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). While the Board recognizes the Veteran's sincere belief in his claim, the most competent evidence of record does not show that he has had a chronic sleep disorder at any time during the current appeal. His reports of sleep troubles are considered as part of his disability picture for his service-connected unspecified depressive disorder. A separate sleep disorder diagnosis has not been made. As such, the record does not support service connection for this disability. In reaching this determination, the Board is mindful that all reasonable doubt is to be resolved in the Veteran's favor. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Because, however, the preponderance of the evidence is against the claim, it must be denied. REASONS FOR REMAND Service connection for a respiratory disorder In November 2018, the Board found that a remand was necessary to obtain an addendum VA opinion addressing whether the Veteran's respiratory condition is related to his military service, to include as due to herbicide exposure. The Board found that, as the Veteran's service personnel records show service in Vietnam, he is presumed to have been exposed to herbicides. The Board noted that, while a previous examiner of September 2014 noted that the Veteran's diagnosed chronic obstructive pulmonary disease (COPD) was not related to the asthma he experienced in service, the prior examiner did not address whether the Veteran's condition was otherwise related to his service. The Board also requested that the examiner address whether the Veteran's respiratory disorder was proximately due to, or aggravated beyond its natural progression by, a service-connected disability. An additional examination and an opinion were obtained in July 2020. The examiner noted diagnoses of emphysema and COPD. In addressing the etiology of these conditions, the examiner provided an unclear and very limited opinion. It should first be noted that the examiner combined the opinions addressing the Veteran's claimed respiratory disorder and his claimed kidney disorder in one examination report and did not always clearly indicate which disorder was being discussed in the provided answers. Beyond the confusing aspects of the examination report, the examiner provided very short, incomplete explanations as rationale for the opinions provided. In addressing direct service connection, the examiner only noted that there were no STRs demonstrating related complaints or treatments during service and that, while herbicide exposure is conceded, herbicide exposure is not an established etiology of COPD or emphysema in the medical literature. In addressing whether the Veteran's respiratory disorders were proximately due to or caused by a service-connected disability, the examiner again provided a very brief and incomplete opinion. The examiner noted only "neither," likely intending to say that the respiratory disorders were neither proximately due to or caused by a service-connected disability, but did not expand and only noted that there was nothing in the medical literature to establish unspecified depressive disorder or migraine headachesthe Veteran's service-connected disabilitiesas etiologies for his respiratory disorders. The examiner additionally noted that a baseline for the disabilities could not be determined and that his current symptoms of his respiratory disorders fall within the natural projected history of his conditions and does not represent an aggravation. The opinions provided do not include any recordings of the Veteran's contentions. The Board, thus, finds that the development conducted after the November 2018 remand is inadequate and incomplete and that, as such, there has not been substantial compliance with the prior remand directives. Stegall, 11 Vet. App. at 271. The July 2020 examiner failed to address fully the questions presented, failed to provide an adequate rationale for any opinion provided in the examination report, and appears to not have considered the Veteran's contentions in formulating the provided opinions. Given the inadequacies of the July 2020 opinion, the Board finds that there has not been substantial compliance with the November 2018 Board remand directives and that corrective action is, thus, necessary. On remand, an additional VA opinion should be obtained to assess the nature and etiology of the Veteran's diagnosed respiratory disorder(s). Service connection for a kidney disorder In November 2018, the Board found that a remand was necessary to obtain a VA examination. The Board noted that the Veteran had not yet been accorded a VA examination, despite evidence of a current disability and his contention that his kidney disorder is related to his military service, to include his exposure to herbicides. A VA examination was obtained in July 2020. Due to the ongoing COVID-19 pandemic, the Veteran's examination was conducted via a telephone interview and the examiner conducted a review of the Veteran's claims file. The examiner noted a diagnosis of nephrolithiasis, or kidney stones. In addressing the etiology of his kidney disorder, the opinions provided are lacking in the same ways as the respiratory disorder opinions. The examiner provided an unclear and very limited opinion which, as noted above, was combined with the opinions addressing his claimed respiratory disorder and did not always clearly indicate which disorder was being discussed in the provided answers. In addition to the confusion present in the examination report, the examiner provided a very short, incomplete explanation as rationale for the opinion provided. In addressing direct service connection, the examiner only noted that there were no STRs demonstrating related complaints or treatments during service and that, while herbicide exposure is conceded, herbicide exposure is not an established etiology of kidney stones in the medical literature. The examiner did not include, or appear to consider, the Veteran's contentions in providing the requested opinion. The Board finds that the development conducted after the November 2018 remand is inadequate and incomplete and that, as such, there has not been substantial compliance with the prior remand directives. Stegall, 11 Vet. App. at 271. The July 2020 examiner failed to provide an adequate rationale for the opinion provided in the examination report and additionally appears to not have considered the Veteran's contentions in formulating the provided opinion. Given the inadequacies of the July 2020 opinion, the Board finds that there has not been substantial compliance with the November 2018 Board remand directives and that corrective action is, thus, necessary. On remand, an additional VA opinion should be obtained to assess the nature and etiology of the Veteran's diagnosed kidney disorder. Accordingly, these matters are REMANDED for the following action: 1. Obtain a VA medical opinion from an appropriate clinician to determine whether his diagnosed respiratory disorder(s) is(are) related to his military service, to include as due to herbicide exposure, and/or secondary to a service-connected disability (unspecified depressive disorder and migraine headaches). The record must be made available to, and be reviewed by, the VA examiner in conjunction with this examination. After reviewing the claims folder, the examiner is asked to do the following: a. Opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's respiratory disorder(s) onset in, or is/are otherwise related to, his military service, to include as caused by his conceded in-service herbicide exposure; and b. Notwithstanding the above, opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's respiratory disorder(s) was(were) caused or aggravated beyond its natural progression (worsened) by any service-connected disability (to include the service-connected unspecified depressive disorder or the service-connected migraine headaches). In this regard, the Board emphasizes that causation and aggravation are two separate inquires, and both must be answered. 2. Obtain a VA medical opinion from an appropriate clinician to determine whether his diagnosed kidney disorder is related to his military service, to include as due to in-service herbicide exposure. The record must be made available to, and be reviewed by, the VA examiner in conjunction with this examination. After reviewing the claims folder, the examiner is asked to do the following: Opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's respiratory disorder(s) had its onset in, or is otherwise related to, his military service, to include as caused by his conceded in-service herbicide exposure. The examiner is advised that the Veteran is competent to report his symptoms and history and such reports must be acknowledged and considered in formulating any opinion requested herein. Rationale for all opinions expressed must be provided. A clear explanation for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she must explain why. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Goreham 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.