Citation Nr: 21040846 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 18-26 978 DATE: July 7, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from April 1968 to November 1969, to include service in the Republic of Vietnam, as well as additional service in the National Guard and Reserve. This matter comes before the Board of Veterans' Appeals (Board) from a June 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this matter for further development in October 2018 and February 2021. Pursuant to the February 2021 Board remand, a new C&P examination and medical opinion were obtained in February 2021. Unfortunately, the February 2021 medical opinion is inadequate for failure to comply with the February 2021 Board remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand confers upon the claimant, as a matter of law, the right to compliance with the remand directives). In this regard, the February 2021 Board remand stated that "a negative opinion cannot be solely based on the absence of documented complaints during the Veteran's active duty." Despite this directive, the February 2021 examiner based a negative opinion for service connection solely on the absence of documented complaints during active duty. The examiner also noted that the Veteran's wife reported noticing symptoms in 1991 and that OSA was first diagnosed in 2014; however, these statements simply assert what the evidence shows and are not followed by any analysis regarding how they support the examiner's opinion or relate to the Veteran's case. With respect to the negative opinion for service connection as a result of conceded exposure to herbicide agents, the examiner stated that "Agent orange is not a risk factor or cause for Obstructive sleep apnea," but did not cite any medical authorities for this proposition or, as instructed by the Board remand, discuss the specific facts of this Veteran in relation to medical research. The examiner stated that "Sleep apnea classified as obstructive is related to occlusion of the upper airway usually at the level of the oropharynx leading to collapse of the upper airway," but did not explain why herbicide agent exposure could not be the cause of this upper-airway occlusion and collapse. Lastly, the initial Board remand rendered in October 2018 requested that an examiner consider whether the Veteran's history supports "continuity of symptoms since service." The same examiner conducted both the August 2020 and February 2021 examinations; however, neither time did the examiner elicit from the Veteran information regarding continuity of symptoms since active service. The August 2020 examination provided no information regarding the history of the disability other than noting it was diagnosed in 2014. The February 2021 examination report indicates symptoms have persisted since 1991; however, this date seems to be based on the Veteran's wife's statement alone and, according to her February 2015 Statement in Support of Claim, they have been together since 1991. This means that the Veteran's symptoms could have begun earlier than 1991. Clarification should be obtained from the Veteran as to when symptoms first began. Accordingly, remand is warranted to obtain a new examination for an accurate assessment of the historical development of the Veteran's OSA symptoms and to obtain an adequate medical opinion. Moreover, a theory of secondary service connection is raised by the record and should be addressed on remand. In addition, it is unclear whether the RO has responded to the Veteran's August 2015 Statement in Support of Claim asserting that the RO has not considered medical records from his National Guard service. Thus, the RO should verify the efforts it has undertaken to obtain the Veteran's National Guard service treatment records, or to obtain those records if it has not done so. Updated VA and private treatment records should also be secured. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding pertinent private treatment records. 3. In an August 2015 Statement in Support of Claim, the Veteran stated that he noticed the evidence considered in a recent decision did not include service treatment records (STRs) from the National Guard from March 1977 to July 1999. In any decision issued on this matter, the RO should verify in writing the efforts it has undertaken to obtain the Veteran's National Guard STRs from March 1977 to July 1999, or to attempt to obtain those records if it has not done so. In this regard, the Board observes that rating decisions issued since August 2015 list active duty STRs from April 1968 to November 1969 and VA treatment records from August 1970 to July 2019; however, they do not list National Guard STRs. 4. After completing #1, #2, and #3 above, schedule the Veteran for an examination with an appropriate clinician, other than the August 2020 and February 2021 examiner, to determine the nature and etiology of the Veteran's OSA. The entire claims file must be made available to and reviewed by the examiner, to include any records obtained pursuant to steps #1, #2, and #3. All necessary diagnostic studies and tests should be carried out. After reviewing the claims file, the examiner is asked to: (a.) Elicit from the Veteran a detailed history of the development of his OSA symptoms regarding when his first symptoms began and how they have developed since initial onset. The examination report must contain a detailed account of the historical development of his symptoms. The examiner should consider the Veteran's wife's report of noticing symptoms in 1991 (see February 2015 Statement in Support of Claim), but cannot base a historical account of the development of the condition solely on this report, or solely on the condition being diagnosed in 2014. (b.) Then opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's OSA had its onset in active service or is otherwise related to active service, to include as a result of conceded exposure to herbicide agents while serving on the ground in the Republic of Vietnam. Basing a negative opinion solely on the absence of documented complaints on active duty will render the opinion inadequate. Basing a negative opinion solely on the fact that OSA was not diagnosed until 2014 will render the opinion inadequate. A negative opinion cannot be based solely on the fact that OSA is not on the list of diseases enumerated as presumptively associated with exposure to herbicide agents in VA regulations. A negative opinion cannot be based solely on the absence of medical literature supporting a nexus between OSA and herbicide agent exposure without discussing the specific facts of this Veteran with respect to the literature. If the examiner relies on medical research, literature, or articles, the examiner must cite those sources and apply the principles of those sources to the facts of the Veteran's case. The examiner is specifically asked to consider and discuss whether the effects of conceded exposure to herbicide agents could lead to the physiological changes that bring about OSA, such as upper-airway occlusion and collapse as mentioned by the February 2021 examiner. (c.) Please opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's OSA (1) is proximately due to or (2) has been aggravated by service-connected diabetes mellitus. Please answer (c)(1) and (c)(2) separately, and please note that there is no temporal requirement that the primary condition (diabetes) be service-connected, or even diagnosed, at the time the secondary condition (OSA) is incurred, and reliance on this fact will render any opinion inadequate. Please provide a robust rationale for all opinions. If unable to opine without resorting to speculation, please provide a basis for reaching this conclusion. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. deBruyn, 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.