Citation Nr: 21041137 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 11-26 202 DATE: July 8, 2021 REMANDED Service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1983 to April 1988 and from November 2012 to June 2013 with additional periods of National Guard and Reserve service. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in July 2013, July 2016, March 2018, January 2020, and October 2020 when it was remanded for further development. In October 2012, a hearing was held before an Acting Veterans Law Judge (AVLJ). A transcript of the hearing is in the record. In March 2016, the Veteran was informed that the AVLJ who presided over the hearing was no longer employed by the Board. He was advised to submit a request for another hearing within 30 days if he wished to have one, and no such request was received. Therefore, the Board proceeded with adjudication of his claim. Entitlement to service connection for sleep apnea is remanded. Although the additional delay is regrettable, the Board finds remand is necessary to allow the Board to make a fully informed decision regarding the Veteran's claim. After multiple attempts, an adequate VA opinion regarding the etiology of the Veteran's sleep apnea has not been obtained. The Veteran has a current diagnosis of sleep apnea that was made in 2008. As noted in the January and October 2020 remands, the record also shows competent and credible lay evidence indicates the Veteran's symptoms of sleep apnea onset during service. Specifically, in a February 2009 statement, the Veteran reported that his symptoms of snoring and increased heart rate from breathing stoppage began in 1985 while he was on active duty. Additionally, during an October 2012 Board hearing, the Veteran testified that his sleep apnea symptoms began early in his military career. In previous decisions, the Board found the August 2013, September 2018, and March 2020 medical opinions were inadequate for determining whether the Veteran's sleep apnea was related to his service because the examiners failed to adequately consider and address the Veteran's lay statements regarding his symptom onset during active duty service. Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, there has not been substantial compliance with the Board's multiple remands. See Stegall v. West, 11 Vet. App. 268 (1998). The Board also finds the December 2020 VA examination opinion inadequate for the same reason. That clinician opined that he could not determine that it is least likely than not that the sleep apnea symptoms occurred during active duty, prior to separation from service. The examiner based this on the fact that, while the Veteran testified that his symptoms began in service, there was "no objective evidence" supporting the complaints and that the positive sleep study was obtained 20 years after his period of active duty ended. As noted in the January 2020 remand, the Veteran provided a reason for the lapse of time between his separation from service and his diagnosis. At his October 2012 hearing, he stated that he did not know anything about sleep apnea in the 1980s, and that when he learned more about the condition, he sought treatment. In the prior remand, the Board found this statement to be credible. The examiner failed to adequately consider and address the Veteran's lay statements. Dalton v. Nicholson, 21. Vet. App. 23 (2007). Accordingly, the Board finds remand for an additional addendum opinion to determine the etiology of the Veteran's sleep apnea is required. The matter is REMANDED for the following action: 1. Provide the Veteran's claims file to a clinician so a supplemental opinion may be provided regarding the etiology of the Veteran's sleep apnea. The entire claims file and a copy of this remand must be made available to the clinician for review. A physical or telehealth examination of the Veteran is only required if deemed necessary by the clinician. 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 sleep apnea is related to his service. The clinician is advised that in prior remands the Board has found the Veteran's statements to be credible. In providing this opinion, the examiner must address the following: a. The February 2009 statement that his symptoms of snoring and increased heart rate due to breathing stoppage began in 1985 while on active duty. b. His October 2012 Board hearing testimony where he stated that his symptoms began early in his career, and that he did not seek treatment at the time because he did not know anything about sleep apnea, and that he sought treatment when he heard about sleep studies. The examiner must provide a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Ensure that the directive specified in this remand has been implemented. If it has not, appropriate corrective action must be undertaken before readjudication to avoid another remand. Stegall v. West, 11 Vet. App. 268 (1998). 3. Readjudicate the claim. 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.