Citation Nr: 21041578 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 14-39 485 DATE: July 9, 2021 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to asthmatic bronchitis, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from April 1997 to September 2004, to include a year of foreign service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in November 2018 and March 2021. Unfortunately, the Board finds that a third remand is necessary. When a case is remanded, a veteran is entitled to substantial compliance with all remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). If the RO does not substantially comply with the Board's remand instructions, the Board is legally bound to continue remanding until the mistake is corrected. See id. In the March 2021 remand, the Board instructed the RO to obtain a new VA examination for the Veteran's sleep apnea, citing deficiencies in the previous examination. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007), Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Board specifically instructed the new VA examiner to discuss both the June 2015 sleep study that diagnosed the Veteran with sleep apnea, and the three medical treatises discussed in the Veteran's September 2016 appellate brief. A new examination was conducted in April 2021, and the examiner did acknowledge the Veteran's current diagnosis of obstructive sleep apnea. However, in concluding that "current medical literature does not establish that asthma can aggravate OSA," the examiner did not make even a passing reference to the medical evidence put forth in the Veteran's September 2016 brief, let alone attempt to "reconcile" that evidence with their conclusions as the March 2021 remand instructions required. As stated in the Veteran's most recent brief, from June 2021, the opinion "lead[s] a casual reader to the inescapable conclusion that the treatises were not read." Therefore, a remand is necessary to obtain an opinion that complies with the Board's prior instructions. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding the nature and etiology of the Veteran's obstructive sleep apnea. If the clinician believes an in-person or telehealth examination is necessary, one should be scheduled. After reviewing the entire claims file, the examiner should answer the following: (a) Is it at least as likely as not (50 percent probability or greater) that the Veteran's sleep apnea was caused by any event, injury, or disease that happened during active service, or is otherwise directly related to his military service? (b) Is it at least as likely as not that the Veteran's sleep apnea was caused or aggravated by a service-connected disability, to include asthmatic bronchitis? The examiner must reconcile their opinion with the medical literature cited by the Veteran's representative in a September 14, 2016 brief. (c) If the Veteran's sleep apnea is unrelated to his active duty service or any service-connected disability, what is its likely etiology? A complete and fully explanatory rationale must be provided for any opinion offered, citing any record evidence or medical literature relied upon. If an opinion cannot be rendered without resorting to speculation, the examiner must explain why. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shermila Sundquist 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.