Citation Nr: 21031497 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-48 902 DATE: May 24, 2021 REMANDED Entitlement to service connection for sleep apnea (claimed as sleep disturbances) is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Air Force from February 2006 to February 2014. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was previously before the Board in November 2018, at which time the Board remanded the matter to the agency of original jurisdictions (AOJ) to obtain an addendum medical opinion. The matter has now been returned to the Board for appellate consideration. Entitlement to service connection for sleep apnea (claimed as sleep disturbances) is remanded. Although the additional delay is regrettable, the Board finds that another remand is required before the Veteran's claim for service connection for sleep apnea can be properly adjudicated on its merits. The Veteran contends that his sleep apnea began during service. See VA 21-4138, Statement in Support of Claim, received May 2015. Per the directives of the Board's prior remand, the Veteran was afforded a VA examination to determine the nature and etiology of his sleep apnea in September 2019. The examiner noted that the Veteran was diagnosed with obstructive sleep apnea during an October 2017 sleep study. The examiner opined that the Veteran's sleep apnea was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the examiner explained that the results of the Veteran's October 2017 sleep study indicated that his obstructive sleep apnea was very mild. The examiner noted that the Veteran reported that his continuous positive airway pressure (CPAP) machine "only helped his breathing and snoring during sleep and did essentially nothing for his major problem of restless sleep, poor sleep quality, not able to maintain restful sleep, daytime sleepiness, and fatigue." Based on the Veteran's reported history, the examiner explained that the Veteran's "major disability and symptoms" cannot be explained by his obstructive sleep apnea alone. The examiner stated that the Veteran never had a sleep study conducted during service. The examiner concluded that he could not make the connection between the Veteran's mild obstructive sleep apnea and his service. However, the examiner did not address lay statements from the Veteran and his spouse regarding his asserted continuity of symptomatology since service. The examiner also did address the sleep related issue mentioned in a military services physical dated July 11, 2011. Therefore, the rationale of the negative nexus opinion is inadequate for adjudicative purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board must ensure compliance with the terms of its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand confers on the veteran, as a matter of law, the right to compliance with the remand orders). In the present case, the Board finds that there has not been substantial compliance with the directives of the November 2018 remand. Therefore, another remand is required in order to procure a medical opinion supported by a sound rationale before the Board can render a fully-informed decision on the merits of the Veteran's appeal. The matters are REMANDED for the following action: 1. Forward the Veteran's claims file to a qualified clinician for an addendum medical opinion regarding the etiology of the Veteran's obstructive sleep apnea. All pertinent evidence of record must be made available to and reviewed by the examiner. If the examiner determines that an examination is necessary, one should be scheduled After reviewing the record, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's obstructive sleep apnea is causally related to his military service. In providing this opinion, the examiner should consider and address the lay statements made by the Veteran and his spouse concerning the onset and continuity of his symptomatology. The Veteran is capable to report symptoms capable of lay observation. The examiner is also asked to consider and address the July 11, 2011 military services physical wherein the Veteran reported getting less than five hours of sleep on three or more consecutive nights and the examiner noted the Veteran had a "probable sleep deficiency." It should be noted that the Veteran is competent to attest to factual matters of which he had or had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. A full rationale must be provided for any opinion offered and a thorough explanation would be helpful for the Board. 2. After completing the above development, and any other development deemed necessary, readjudicate the issue on appeal. If any benefit sought on appeal remains denied, provide an additional supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran and his representative have had an adequate opportunity to respond. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fairlie, 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.