Citation Nr: 21040424 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 12-03 872 DATE: July 3, 2021 REMANDED Entitlement to service connection for a bilateral foot disability is remanded. Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran had active duty service from January 2003 to April 2004. The Veteran had additional Reserve service from February 1978 to May 1978. This appeal comes to the Board of Veterans' Appeals (Board) from rating decisions dated September 2009 and March 2010 issued by Department of Veterans Affairs (VA) Regional Offices (RO) of the Veteran's Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran timely appealed both decisions. The Veteran's appeal was previously been before the Board in October 2014 and September 2018, when it was determined that remand was necessary in order to ensure that VA fulfilled its duty to assist the Veteran in substantiating his appealed issues. The Board's prior remand directives and the subsequent actions of the AOJ will be discussed below. The Veteran's appealed issues have been returned to the Board for further appellate consideration. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). 1. Entitlement to service connection for a bilateral foot disability is remanded. The Veteran contends that his bilateral foot disability was due to his active duty military service. Unfortunately, there has not been substantial compliance with the Board's previous remand directives. In its September 2018 remand, the Board directed that a VA medical opinion be obtained regarding the etiology of the Veteran's bilateral foot disabilities. In March 2021, a VA examiner provided an opinion as to the Veteran's bilateral foot disabilities. He identified all foot disabilities that were present from November 2008 to the present, as required by the September 2018 BVA remand directives. However, the August 2003 and October 2003 complaints of right foot pain were not addressed. In fact, the VA examiner incorrectly stated that the Veteran's service treatment records (STRs)were silent for a musculoskeletal right foot condition during service and did not show clinical evidence of treatment, medical follow up or signs or symptoms associated to that condition. The September 2018 Board remand specifically pointed out that the Veteran's STRs document complaints of right foot pain during periods of active service in August and October 2003, which the VA examiner did not address. Given that there was not substantial compliance with the Board's September 2018 remand instructions, remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). 2. Entitlement to service connection for sleep apnea is remanded. The Veteran contends that his sleep apnea was due to his active duty military service. Unfortunately, there has not been substantial compliance with the Board's previous remand directives. In its September 2018 remand, the Board directed that a VA medical opinion be obtained regarding the etiology of the Veteran's sleep apnea. As directed, a medical nexus opinion was obtained in April 2020; however, the Board finds that such is inadequate for the purpose of readjudicating the Veteran's appeal. Specifically, the March 2004 STR (which was specifically noted by the Board in the prior remand) was not addressed. In fact, the VA examiner incorrectly stated that the STRs were silent regarding any diagnosis or symptoms of obstructive sleep apnea during active service. The September 2018 Board remand specifically pointed out that the Veteran's STRs document complaints of still feeling tired after sleeping during a period of active service in March 2004, which the VA examiner did not address. Given that there was not substantial compliance with the Board's September 2018 remand instructions, remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the matters are REMANDED for the following action: 1. Request an addendum opinion addressing the Veteran's bilateral foot disabilities and sleep apnea. In-person examination is not required unless deemed necessary by the examiner. Based upon a review of the entirety of the claims file, the examiner is requested to provide an opinion as to the following questions: (a.) Is it at least as likely as not that any foot disability was either incurred in or otherwise related to the Veteran's military service? Please explain why. (b.) In so doing, the examiner must address the August 2003 and October 2003 complaints of right foot pain. (c.) Is it at least as likely as not that the Veteran's sleep apnea was either incurred in or otherwise related to the Veteran's military service? Please explain why. (d.) In so doing, the examiner must address the Veteran's report in March 2004 of still feeling tired after sleeping. Explanations for all opinions must be provided. In providing the requested rationale, the examiner is asked to cite to the pertinent evidence of record, including clinical records and the Veteran's statements regarding the onset of his symptoms. (Continued on the next page) 2. Thereafter, the AOJ must readjudicate the Veteran's appealed issues in light of the totality of evidence of record. If any benefit sought is not granted to the fullest extent, the AOJ must provide the Veteran and his representative with a copy of the readjudication and afford them an appropriate period to respond. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Bristor 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.