Citation Nr: 21042556 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-16 188 DATE: July 13, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected migraine headaches and posttraumatic stress disorder (psychiatric disability), is remanded. REASONS FOR REMAND The Veteran had honorable active duty service from October 1983 to October 1987. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). This issue was previously before the Board in February 2020, when it was remanded for further development. That development was completed, and the case has since been returned to the Board for appellate review. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected psychiatric disability, is remanded. Remand is required for substantial compliance with the February 2020 Board remand directives, and for an addendum VA medical opinion. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). When a Veteran has provided competent lay statements of an in-service injury, the examiner must consider and address them when developing their rationale. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that when the Veteran has provided lay testimony of an in-service injury, an examiner cannot ignore that lay evidence and base their opinion that there is no relationship to service on the absence of in-service corroborating medical records). The Veteran underwent a new VA examination in February 2020, in which the examiner provided negative nexus opinions on both a direct and secondary basis. The examiner explained that there are no medical records showing diagnosis or treatment for sleep apnea while the Veteran was still in service, and therefore it is less likely than not that it is related to service. The examiner also opined that the sleep apnea was not caused or aggravated by the Veteran's service-connected psychiatric disability. The examiner explained that sleep apnea tends to be multifactorial in nature, including genetic factors, environmental factors, drug abuse, lifestyles, body habitus, sinus conditions, upper respiratory conditions, neurological deficits, or even idiopathic. The examiner stated that the Veteran's service-connected psychiatric disability is not a contributing factor or cause of sleep apnea. However, the February 2020 Board remand instructed the examiner to address two studies by the National Institute of Health (NIH) regarding the correlations between psychiatric disorders and sleep apnea that the Veteran's representative cited to in the January 2020 Written Brief Presentation. The examiner did not address these studies. Additionally, during the examination, the Veteran asserted that the condition began in 1984 while in service, and that they experienced years of snoring, restless sleep, excessive daytime sleepiness, and fatigue, but was not diagnosed until 2012. The examiner did not address this assertion of continuity of symptomatology. Accordingly, remand is required for an addendum VA medical opinion. By this remand the Board makes no determination, expressed or implied, concerning the credibility of any statements on file. The matters are REMANDED for the following action: Obtain an addendum opinion regarding the etiology of the obstructive sleep apnea from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. (a) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the obstructive sleep apnea had onset in, or is otherwise related to, active service. (b) The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the obstructive sleep apnea is caused by the service-connected psychiatric disability. (c) The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the obstructive sleep apnea is aggravated by the service-connected psychiatric disability. (d) The examiner must address the following: 1) the January 2020 Written Brief Presentation containing links to a 2015 NIH study showing that there may be an increased prevalence of sleep apnea in individuals with major depressive disorder and with PTSD, and to a 2018 NIH study showing a high prevalence of sleep apnea in psychiatric patients; and 2) the Veteran's assertions of continuity of symptomatology since 1984 during the February 2020 VA examination. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rogos 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.