Citation Nr: 21041053
Decision Date: 07/08/21	Archive Date: 07/07/21

DOCKET NO. 16-28 445
DATE: July 8, 2021

REMAND

Entitlement to service connection for obstructive sleep apnea is remanded.

REASONS FOR REMAND

The Board sincerely regrets the additional delay that will result from this additional remand of this claim, but it is necessary to ensure there is a complete record and so the Veteran is afforded every possible consideration.

In October 2020, the Board remanded the case with directives to schedule an examination to evaluate sleep apnea, provide a nexus opinion, and address the Veteran's lay statement made during his March 2019 Board hearing.  

A VA examination was conducted in November 2020.  The examiner opined that it was less likely than not that the Veteran's sleep apnea is due to or the result of sleep apnea during service. 

However, the Board finds this examination opinion inadequate because the VA examiner failed to address the Veteran's lay contentions, including his explanation that although he was waking up late and getting to duty late during active duty, he did not seek treatment for sleep apnea during service because he did not realize it was a problem until many years after service when his doctors mentioned it.  

The opinion is inadequate and therefore there was not substantial compliance with the Board's remand directives.  Consequently, the Board must again remand this claim.  Stegall v. West, 11 Vet. App. 268, 270-71 (1998) (holding that a remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand, and that the Board itself commits error as a matter of law in failing to ensure this compliance).

The matter is REMANDED for the following actions:

1. Provide the Veteran's claims file to a clinician so an addendum opinion regarding the etiology of the Veteran's obstructive sleep apnea can be provided. Following a complete review of the electronic claims file, the examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's obstructive sleep apnea is related to service.

The clinician must address the Veteran's lay contentions from his March 2019 hearing, where he stated that:

a.	he had problems sleeping while he was in service, including snoring and waking up late and

b.	the reason he did not seek treatment is because he did not know that his sleep disturbances were indicative of a problem until he was told by a doctor.  

A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. 

2. After the above development, and any additionally indicated development has been completed, readjudicate the claims. If the benefits sought are not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. 

 

 

D. Martz Ames

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Kathleen M. Fiorillo, 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.