Citation Nr: 21031946 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 15-35 045 DATE: May 25, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from November 1985 to August 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board to obtain an initial examination for the Veteran's sleep apnea. See McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). When a case is remanded, a veteran is entitled to substantial compliance with all remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). If the RO does not substantially comply with the Board's remand instructions, the Board is legally bound to continue remanding until the mistake is corrected. See id. While a VA examination was conducted in November 2019, the Board finds that this examination was inadequate, and that a second remand is therefore necessary. The November 2019 examination gave a deficient rationale on the issue of direct service connection. The examiner found that it was less likely than not that the Veteran's sleep apnea was incurred in service, citing medical literature which "show[ed] history of 'snoring' is NOT useful in establishing a diagnosis of OSA [obstructive sleep apnea]." The examiner further wrote that, according to the medical literature: Snoring on its own is common and does not discriminate between those with and without OSA... While snoring is associated with a sensitivity of 80 to 90 percent for the diagnosis of OSA, its specificity is below 50 percent. The actual percentage of snorers who have sleep apnea varies greatly and solid data are lacking. There are two major problems with this rationale. First, as pointed out in the Veteran's March 2021 appellate brief, the two "buddy statements" received in January 2019 described more than "a history of snoring." The first letter described the Veteran's snoring as getting noticeably worse over time during his active duty service. The second letter described the Veteran as not just snoring, but having "continuously stopped breathing" during active service. A medical opinion that mischaracterizes evidence is an inadequate basis for a rating decision. Second, the medical literature cited by the examiner does not directly support the examiner's conclusion. While it may be true that fewer than 50 percent of snorers overall have sleep apnea, the Veteran himself does have sleep apnea; his treatment records reflect that he was diagnosed during a sleep study in July 2007, and his current diagnosis of sleep apnea has been conceded. The question of whether sleep apnea can be diagnosed purely based on snoring is not necessarily the same question as whether, given that the Veteran does have a diagnosis of sleep apnea, his sleep apnea is at least as likely as not linked to his past history of snoring (and other sleep interruptions). The November 2019 examiner should have more thoroughly analyzed the medical literature on this point andif they still found that the Veteran's sleep apnea was less likely than not incurred in serviceoffered an explanation of the most likely onset of his sleep apnea. The portion of the opinion which dealt with secondary service connection was also inadequate, as it did not address a March 2014 letter from one of the Veteran's treating physicians or an October 2018 letter from his psychotherapist, both of which indicated that the Veteran's posttraumatic stress disorder (PTSD) interferes with his sleep apnea treatment (specifically, by causing him to tear off his CPAP mask during sleep). The November 2019 opinion did not address the Veteran's October 2018 hearing testimony, which also described the Veteran ripping off his mask during PTSD-induced nightmares and damaging several CPAP machines this way over the course of years. VA has a duty to ensure that any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical opinion is adequate where it is based upon consideration of the full medical history and describes a disability in sufficient detail so that the Board's evaluation will be fully informed. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Board finds that a remand is necessary to obtain an examination which considers all relevant evidence of record and supports its conclusions with adequate reasoning. The matters are REMANDED for the following action: 1. Obtain an opinion from an appropriate clinician, who has not already provided an opinion in this case, regarding the nature and etiology of the Veteran's obstructive sleep apnea. If the clinician believes an in-person or telehealth examination is necessary, one should be scheduled. After reviewing the entire claims file, the examiner should answer the following: (a) Is it at least as likely as not (50 percent probability or greater) that the Veteran's sleep apnea was incurred during active duty service, or caused by any event, injury, or disease that happened during active service? The opinion should specifically address testimony from the Veteran and other lay witnesses, including the "buddy statements" submitted in January 2019, and the October 2018 hearing transcript. (b) Is it at least as likely as not that the Veteran's sleep apnea was caused or aggravated by a service-connected disability (specifically PTSD)? The examiner should specifically address the October 2018 letter describing the Veteran tearing off his CPAP mask due to PTSD, as well as the October 2018 hearing transcript. (c) If the Veteran's sleep apnea is unrelated to his active duty service, what is its likely etiology? A complete and fully explanatory rationale must be provided for any opinion offered, citing any record evidence or medical literature relied upon. If an opinion cannot be rendered without resorting to speculation, the examiner must explain why. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shermila Sundquist 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.