Citation Nr: 22018665 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 17-37 783 DATE: March 30, 2022 REMANDED Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served in the United States Navy from July 1990 to June 1994. This matter comes before the Board of Veterans' Appeals (Board) from a December 2015 rating decision. In March 2019, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for the Veteran to receive a new VA examination for his sleep apnea. The Veteran received a VA examination in September 2015 that considered secondary service connection, but the examiner failed to provide an opinion concerning aggravation. The Veteran received a new VA opinion in December 2019. Regarding aggravation, the examiner concluded that the Veteran's sleep apnea was "not permanently aggravated beyond its natural progression" by his service-connected gunshot wound residuals to include restrictive lung disease. This rationale is inadequate because aggravation is not required to be permanent for secondary service connection to be established. Ward v. Wilkie, 31 Vet. App. 233 (2019). Unfortunately, a new opinion is needed because there has not been substantial compliance with the Board's March 2019 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). In October 2021, the Board remanded the claim to ensure a copy of the July 2020 supplemental statement of the case (SSOC) was sent to the Veteran and his veterans service organization representative (Texas Veterans Commission), as listed. The Veteran also is represented by an attorney, but the attorney specifically limited his representation to the Veteran's claim for an increased rating for his heart condition, which is not part of this appeal. In November 2021, the AOJ sent a copy of the July 2020 SSOC to the Veteran's attorney who specifically limited his representation to another claim. The Texas Veterans Commission has not been provided with the SSOC. There has not been substantial compliance with the October 2021 remand directives. Id. This matter is remanded for the following action: 1. Provide a copy of the July 2020 SSOC to the Veteran's veterans service organization representative: Texas Veterans Commission. 2. Return the Veteran's claims file to the examiner who provided the December 2021 medical opinion. If that examiner is not available, provide the claims file to a different clinician. The clinician must opine as to the following: a. Determine whether the Veteran's sleep apnea was proximately due to or the result of his service-connected gunshot wound residuals to include restrictive lung disease. b. Determine whether the Veteran's sleep apnea was aggravated by his service-connected gunshot wound residuals to include restrictive lung disease. The examiner is advised that the aggravation is not required to be permanent for secondary service connection to be established. The clinician 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 clinician must state this and provide a rationale for such conclusion. 3. Ensure that the directives specified in this remand have been implemented. If they have not, appropriate corrective action must be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 4. Readjudicate the claim. If any decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case to the Veteran's correct representative for his sleep apnea claim (Texas Veterans Commission) and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Brunot, 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.