Citation Nr: 21027140 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 16-26 286 DATE: May 4, 2021 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to a service-connected disability is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1988 to August 1992. This current matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Board remanded this appeal for further evidentiary development. The Veteran's complete service treatment records (STRs) are not available. See December 2011 VA Memorandum. Another search was conducted in April 2018, and another VA Memorandum was issued in May 2018 that acknowledged the unavailability of his STRs. The Veteran was notified of this finding in June 2018. In situations where STRs are completely or partially unavailable, the Board has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The legal standard is not lowered for proving a service connection claim, but rather the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran is increased. Russo v. Brown, 9 Vet. App. 46 (1996). There is no presumption, either in favor of the claimant or against VA, arising from missing records. Cromer v. Nicholson, 19 Vet. App. 215 (2005). Service connection for sleep apnea The November 2018 Board decision remanded this service connection claim to obtain outstanding private and VA treatment records and to accord the Veteran a VA examination to determine the nature and etiology of his sleep apnea. A VA examination was obtained in November 2019. The examiner did not include any report, or record any indication, of the Veteran's medical history or the onset of his symptoms. Rather, the examiner only noted that obstructive sleep apnea was diagnosed in 2009. The examiner then opined that it was less likely than not that the Veteran's sleep apnea was related to his military service because there were no medical records to indicate that he had sleep apnea while on active duty. As previously noted herein, the Veteran's STRs are unavailable. 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. The Board finds that the development conducted after the November 2018 remand is inadequate and that, as such, there has not been substantial compliance with the prior remand directives. Stegall, 11 Vet. App. at 271. It does not appear that the November 2019 VA examiner gave any consideration to the Veteran's contentions in providing an opinion. Despite reports from the Veteran and family members and friends regarding the onset and continuation of his symptoms, no reference was made to these statements or reports in the examiner's report. Furthermore, the examiner noted there were no in-service medical records to indicate sleep apnea while on active duty. The Veteran's STRs are unavailable. So, it is unclear whether the examiner was referencing the unavailability of the STRs or provided the cursory rationale without consideration to the records available in the claims file. Given the inadequacies of the November 2019 examination opinion, the Board finds that there has not been substantial compliance with the November 2018 Board remand directives and that corrective action is, therefore, necessary. Additionally, in May 2020 correspondence, the Veteran expressed his belief that his sleep apnea may be attributable to one of his service-connected disabilities, such as his service-connected posttraumatic stress disorder (PTSD) or his service-connected medically unexplained chronic multi-symptom illness (claimed as chronic fatigue, headaches, as well as muscle and joint pain all over the body). No VA examiner has addressed whether the Veteran's sleep apnea may be secondary to a service-connected disability. On remand, an additional VA examination and opinion should be obtained to assess the etiology of the Veteran's sleep apnea disability, to include whether such is due to a service-connected disability. Accordingly, these matters are REMANDED for the following action: Schedule the Veteran for an appropriate examination to determine the nature and etiology of his sleep apnea. The examiner should review the claims file and indicate such on the examination report. Any testing deemed necessary should be conducted, and the results thereof should be noted in the report. After a review of the claims folder, as well as an interview with and an examination of the Veteran, the examiner is asked to do the following: a. Opine whether the Veteran's diagnosed sleep apnea is at least as likely as not (50 percent or greater probability) related to an in service injury, event, or disease. b. Notwithstanding the above, opine whether the Veteran's sleep apnea is at least as likely as not (50 percent or greater probability) caused or aggravated (worsened), by a service-connected disability, to include his service-connected PTSD and/or service-connected medically unexplained chronic multi-symptom illness (claimed as chronic fatigue, headaches, as well as muscle and joint pain all over the body). In answering this question, the examiner is directed to review the Veteran's May 2020 statement contending that his sleep apnea is related to his service-connected PTSD or his chronic fatigue, which is considered part of his service-connected MUCMI. The examiner is advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. A complete rationale must be provided for all opinions expressed. 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 cannot provide an opinion without resorting to speculation, he/she must provide an explanation as to why this is so. 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.