Citation Nr: 21030949 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 17-15 408 DATE: May 20, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty for training from September to December 1980 and on active duty from February to August 2003. He served honorably in the U.S. Army, including service in Kuwait during the Gulf War. The Board thanks the Veteran for his service to our country. The issue of service connection for obstructive sleep apnea was previously before the Board in February 2019, when the Board denied the claim. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). In a March 2020 Order, granting a January 2020 Joint Motion for Partial Remand (Joint Motion), the Court vacated and remanded the February 2019 Board decision consistent with the terms of the Joint Motion and dismissed the appeal as to the remaining issue. The Board remanded this case in August 2020 for additional development. The case has now returned to the Board for further appellate review. Entitlement to service connection for obstructive sleep apnea is remanded. A remand is warranted to ensure substantial compliance with the August 2020 Board decision. The Board errs when it fails to ensure substantial compliance with a Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the August 2020 Board remand, pursuant to the January 2020 Joint Motion, the Board directed the Agency of Original Jurisdiction to procure a non-VA sleep study noted in a February 2014 VA note. However, a review of the Veteran's treatment record showed that no sleep study has been associated with the record. Accordingly, a remand is necessary. Further, the Board requested an opinion as to the nature and etiology of the Veteran's sleep apnea and directed the examiner to consider the Veteran's lay contentions in reaching a determination. However, a January 2021 addendum opinion does not address the lay evidence of in-service snoring and fatigue. Finally, the Board observes that there is Spanish-language evidence associated with the record that has not been translated. The matters are REMANDED for the following action: 1. Please secure for the record copies of complete updated clinical records (any not already of record) of all VA and non-VA treatment the Veteran has received for the disabilities on appeal. Please ask the Veteran to provide the releases necessary for VA to secure private treatment records. 2. Please print from VistA and scan into VBMS the non VA sleep study report attached to a February 28, 2014 Non-VA consultation note which was signed and entered on March 20, 2014. 3. Please translate all untranslated documents which are in Spanish, including: Evidence associated with the record on February 21, 2019 labeled "Correspondence" (2 pages); Evidence associated with the record on February 21, 2019 labeled "Correspondence" (4 pages); and Evidence associated with the record on February 21, 2019 labeled "VA 21-4138 Statement in Support of Claim" (3 pages). 4. After the actions requested in paragraphs 1 through 3 is complete, please refer the claim to an appropriate clinician for an addendum opinion as to the nature and etiology of the Veteran's obstructive sleep apnea. The Veteran's claims file must be made available to and reviewed by the clinician. The clinician is requested to opine as to the following: (a.) Is the Veteran's obstructive sleep apnea at least as likely as not (a 50 percent or greater probability) related to service? (b.) In considering question (a.) above, please explain whether the lay statements (detailed below) align with how obstructive sleep apnea is known to develop. The clinician must consider and address as appropriate the lay statements including: The Veteran's statement that every time his sergeant went to check in on him, he was asleep and that his friend E.M. who was in the same room told him that he was snoring too much and could not breathe. (See "Correspondence" received March 13, 2017.) Y.L.O.G's statement that prior to the Veteran's deployment he did not snore, breathed well, and did not wake up during the night but that following deployment he snored too much and she stayed awake at night to make sure he was breathing. (See "Correspondence" received February 14, 2020.) The Veteran's statement that while he was on a ship in the Gulf, fellow shipmates asked if he planned to let them sleep as he snored so loudly such that they could not sleep and that he moved to a different room to sleep. He further stated that he was tired every day and his mood was low. (See "Correspondence" received February 14, 2020.) J.T.F.'s statement that they were squad mates in Kuwait and shared the same room during training and when they went out on mission. J.T.F. relayed that the Veteran complained of daytime fatigue and lack of sleep. J.T.F. relayed that J.T.F. complained to the Veteran that he snored a lot, stopped breathing, and would fall asleep again, and that the Veteran moved to another room. J.T.F. said that he would sleep so deeply that J.T.F. worried about him as they were in hostile areas and anything could happen. (See "Buddy/Lay Statement received February 14, 2020.) Any additional relevant lay evidence procured by the translations of two "Correspondence" files (2 and 4 pages) and a VA form 21-4138 from the Veteran's spouse (3 pages) associated with the record on February 21, 2019. For the purposes of responding to the questions above, the clinician should treat the statements as credible. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Vashaw, 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.