Citation Nr: 21040350 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 15-03 525 DATE: July 3, 2021 REMANDED Entitlement to service connection obstructive sleep apnea (OSA) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 2005 to August 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2018 and February 2021, the Board remanded the claim for additional evidentiary development. Entitlement to service connection OSA is remanded. The Veteran and his representative contend that the Veteran's OSA had its onset during service, and that it is also secondary to his service-connected hernia. See NOD (March 2012); NOD (November 2013); Appellate Briefs (August 2018) & (June 2021). Unfortunately, there has not been substantial compliance with the Board's prior remand directive and another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Although an examination was provided as directed, for the reasons provided below, it is inadequate. Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). In October 2018, the Board remanded the claim to obtain an opinion on direct service connection. Next, in February 2021, the Board remanded the claim to obtain an opinion on secondary service connection. The Board finds that the November 2019 opinion is inadequate because the opinion relied on the absence of a diagnosis for OSA during the Veteran's service as the basis for the negative opinion. An in-service diagnosis is not required to establish service connection. Cosman v. Principi, 3 Vet. App. 503 (1992); see also 38 C.F.R. § 3.303(d) (service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service). Additionally, the opinion indicates that the September 2010 sleep study showing sleep apnea was important and the lay statement from S.G. was credible. However, the rationale does not reflect any meaningful consideration of Veteran's statements. See McKinney v. McDonald, 28 Vet. App. 15, 30-31(2016) ("the VA examiner's failure to consider [a veteran's] testimony when formulating her opinion renders that opinion inadequate."). Specifically, the October 2019 VA examination report shows that the Veteran reported a history of onset of sleep problems in the military, noting he was "always tired after sleeping and had headaches too." The opinion does not address whether these symptoms reflect the onset of later diagnosed OSA. Ultimately, a "medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two." Nieves-Rodriguez v. Peake, 22Vet. App.295, 301 (2008). Therefore, to ensure that VA has met its duty to assist, remand is required. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall, 11 Vet. App. at 271. In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's OSA. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression, and severity of any symptom consistent with his OSA. The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge, or literature, etc., relied upon in reaching the conclusion(s). The clinician should provide an opinion, with supporting rationale, as to the following: Direct Service Connection Whether the Veteran's OSA at least as likely as not (1) had its onset in service, or (2) is otherwise related to an in-service injury, event, or disease during service. Consider the Veteran's report of onset of sleep problems in the military, noting he was "always tired after sleeping and had headaches too." Consider the buddy statement indicating the Veteran snored in service. Explain. NOTE (1): An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. NOTE (2): If any medical history is discounted or reflects, a completed explanation is required. NOTE (3): If there is any medical reason to accept or reject the proposition that the Veteran's reported symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 2. Ensure that the VA medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on next page) 3. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Thaddaeus J. Cox, 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.