Citation Nr: 22012299 Decision Date: 03/03/22 Archive Date: 03/03/22 DOCKET NO. 16-53 609 DATE: March 3, 2022 REMANDED The claim for service connection for sleep apnea is remanded. REASONS FOR REMAND In September 2019, the Veteran was afforded a hearing before the undersigned. In March 2020, the Board remanded this claim for additional development. 1. The claim for service connection for sleep apnea is remanded. The Veteran asserts that service connection is warranted for sleep apnea. He has testified that he has experienced symptoms that included snoring and waking up sleepy during his service. He has also argued that service connection is warranted on a secondary basis, namely that sleep apnea was caused or aggravated by a service-connected disability. Service connection is currently in effect for posttraumatic stress disorder (PTSD), allergic rhinitis, seborrheic dermatitis, tinnitus, and chronic non-supportive serous otitis media. The Board has conceded that the Veteran's military personnel file indicates that he was exposed to smoke from burn pits and exposure to low levels of airborne chemical particulate, to include arsenic barium, beryllium, cadmium, chromium, lead, silver, strontium, and asbestos. In April 2015, he submitted an article in support of the claim based on exposure to burn pit chemicals. In a statement received in November 2014, the Veteran's spouse stated that the Veteran had unrestful sleep problems after his return from Afghanistan. In October 2019, the Veteran submitted a statement from a former service member who stated that he witnessed the Veteran undergo changes in his sleeping habits during their deployment to Afghanistan. In March 2020, the Board remanded this claim. The Board directed that etiological opinions be obtained as to whether the Veteran's sleep apnea was incurred during service or was etiologically related to his service, including but not limited to his exposure to burn pits, chemicals, and/or any other hazards and circumstances of his service, whether it was caused by service-connected disability, to include his PTSD, and whether it was aggravated by service-connected disability, to include PTSD. In April 2020, an etiological opinion was obtained. The examiner concluded that the Veteran's sleep apnea was less likely as not incurred in, or aggravated by, his service. The April 2020 VA examiner's opinion was not responsive to the Board's request for opinions on a secondary basis, nor did the examiner discuss the Veteran's reports of his inservice symptoms. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). In reviewing service-connection claims where a VA examination has been performed, the Board must make a determination as to whether the examination report is adequate to make a decision on the claim, notwithstanding the fact that the Board may not have found the examination necessary in the first place. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Id. Accordingly, a remand is required. The matters are REMANDED for the following action: 1. Obtain a new medical opinion to address the etiology of the Veteran's sleep apnea. If any of the requested opinions cannot be provided without a physical examination, one should be scheduled. The examiner is notified that service connection is currently in effect for PTSD, allergic rhinitis, seborrheic dermatitis, tinnitus, and chronic non-supportive serous otitis media. After review of the record, the examiner should provide the following opinions: a) Is it at least as likely as not (meaning a probability of 50 percent or greater) that the Veteran's sleep apnea had its onset during active-duty service (between April 2009 and March 2010)? Why or why not? b) Is it at least as likely as not (meaning probability of 50 percent or greater) that the Veteran's sleep apnea is etiologically related to his service, including but not limited to his exposure to burn pits, chemicals (to include exposure to low levels of airborne chemical particulate, to include arsenic barium, beryllium, cadmium, chromium, lead, silver, strontium, and asbestos), and/or any other hazards and circumstances of his service? Why or why not? In the explanations, the examiner should specifically discuss the Veteran's reports of inservice symptomatology, the lay statements, the Veteran's accepted claim of exposure to chemicals, as noted above, and the April 2015 article submitted in support of the claim (Correspondence received 4/20/2015) c) If the examiner determines that the Veteran currently has sleep apnea that was not caused by his service and is not otherwise related to his service, the examiner should state whether it is at least as likely as not (meaning probability of 50 percent or greater) that the Veteran's sleep apnea was caused by a service-connected disability, to include PTSD. Why or why not? d) If the examiner determines that the Veteran currently has sleep apnea that was not caused by a service-connected disability, the examiner should state whether it is at least as likely as not (meaning probability of 50 percent or greater) that the Veteran's sleep apnea was aggravated (made worse) by a service-connected disability, to include PTSD. Why or why not? If aggravation is found, the examiner should identify the baseline level of severity of the sleep apnea by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the sleep apnea. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T.S.E., 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.