Citation Nr: 18142570 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 10-49 345 DATE: October 16, 2018 ORDER Entitlement to service connection for sleep apnea, to include as secondary to service-connected bilateral pleural plaques, is granted. REMANDED Entitlement to service connection for a lumbar spine disability, to include as secondary to a service-connected disability is remanded. Entitlement to service connection for a left knee disability is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his sleep apnea is proximately due to his service-connected bilateral pleural plaques. CONCLUSION OF LAW The criteria for entitlement to secondary service connection for sleep apnea are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1954 to November 1958. In an April 2017 decision, the Board denied the Veteran’s claims. The Veteran subsequently appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). In a May 2018 memorandum decision, the Court vacated the April 2017 Board decision with respect to the above-noted issues and remanded the claims for readjudication. Entitlement to service connection for sleep apnea, to include as secondary to service-connected bilateral pleural plaques The Veteran generally asserts that his sleep apnea is secondary to his service-connected bilateral pleural plaques. See January 2013 Statement in Support of Claim. The Board concludes that the Veteran has a current diagnosis of obstructive sleep apnea that was at least as likely as not caused or aggravated by his service-connected bilateral pleural plaques. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.310. The Veteran’s service treatment records do not show complaints, treatment, or a diagnosis related to obstructive sleep apnea. Post-service medical records show that May 2001 and May 2007 sleep studies from private treatment providers showed obstructive sleep apnea. In May 2013, the Veteran underwent a VA examination. The report noted that he was diagnosed with obstructive sleep apnea, and he has been using a CPAP machine. The examiner opined that was less likely that the Veteran’s sleep apnea was caused by, was secondary to, or was aggravated by the service-connected pleural plaques. It was noted that UpToDate, which is a medical software resource, does not mention pleural plaques as a risk factor for sleep apnea. There had not been any changes in the CPAP machine pressures for many years, suggesting that the sleep apnea was stable. Generally, pleural plaques are clinically silent or asymptomatic, and the medical records show stable chronic obstructive pulmonary disease (COPD), asthma, and sleep apnea over the last two or more years. Sleep apnea preceded the diagnosis of pleural plaques by 10 years, and the record did not suggest that sleep apnea was caused by or a result of the plaques. In November 2015, the Veteran underwent a second VA examination for his sleep apnea. The examiner opined that it was less likely as not that the Veteran’s obstructive sleep apnea was proximately due to or the result of the service-connected bilateral pleural plaques because obstructive sleep apnea involves the palate and pharynx, or upper neck, while pleural plaques are frequently asymptomatic and involve the lungs. Pleural plaques are not associated with sleep apnea. Pleural plaques were first noted in a 2011 CT scan, while obstructive sleep apnea was first documented in May 2001. The examiner noted that while the Veteran said he first used a CPAP machine in 1971, they were not invented until 1981. The Veteran corrected himself to say that he was started on a CPAP machine more recently. The November 2015 VA examiner also opined that it was less likely that the Veteran’s obstructive sleep apnea was aggravated by the service-connected pleural plaques. It was noted that the Veteran’s treatment records do not support this, including no medical evidence of worsening of carbon dioxide retention by pleural plaques. The records show a 55-pack-year history of smoking, which is known to worsen COPD/hypoxia. The examiner felt that it was at least as likely as not that the Veteran’s weight gain was a main contributing factor to the aggravation of sleep apnea. According to UpToDate, the more important risk factor for obstructive sleep apnea were advancing age, male gender, obesity, and craniofacial or upper airway soft tissue abnormalities. In February 2016, the Veteran’s claims file was reviewed by an advanced registered nurse practitioner (ARNP) who stated that pleural plaques are a clinical finding, not a diagnosis, and that the Veteran should be diagnosed with pulmonary fibrosis, for which medical literature shows a possible relationship with obstructive sleep apnea. The nurse practitioner stated that it was at least as likely as not that the Veteran’s obstructive sleep apnea was secondary to and/or was aggravated by the service-connected bilateral pleural plaques. In support of this conclusion, the nurse practitioner stated that the Veteran had a component of a central-type obstructive sleep apnea with an enhanced ventilatory control system instability related to his pulmonary fibrosis with pleural plaques. Additionally, the Veteran had inflammatory response mechanisms exacerbating hypoxemia in his coexistent pulmonary fibrosis and sleep apnea conditions. The nurse practitioner disputed the conclusion reached by the November 2015 VA examiner that pleural plaques are not associated with sleep apnea. She stated that medical literature supports that pleural plaques (restrictive lung disease) are associated with sleep apnea by causing a central-type sleep apnea with enhanced ventilatory control system instability. Further, the nurse practitioner noted that the medical evidence showed the Veteran had bedtime oxygen therapy added to his treatment, as well as an increase in titration of his CPAP, both of which indicated a worsening of the overall pulmonary condition and sleep apnea. A Veterans Health Administration (VHA) pulmonologist reviewed the record in August 2016 and opined that the Veteran’s service-connected respiratory disability continued to be characterized as pleural plaques and not pulmonary fibrosis. The pulmonologist concluded that it was not at least 50 percent probable that the Veteran’s obstructive sleep apnea was caused or aggravated by the pleural plaques. The VHA pulmonologist endorsed the reasoning of the May 2013 and November 2015 VA examinations. It was noted that pulmonary fibrosis is caused by asbestosis and is distinct from pleural plaques. The Veteran’s CT scan and pulmonary function test results are not consistent with asbestosis. In December 2016, the nurse practitioner who wrote the February 2016 opinion reviewed the record again and offered her opinion that the August 2016 opinion from the VHA pulmonologist was insufficient. She concluded that the August 2016 opinion discussed why the Veteran does not have asbestosis of pulmonary fibrosis, which is not of issue since the Veteran is only service-connected for bilateral pleural plaques. She further stated that only evidence related to the service-connected pleural plaques should be considered and that the statement by the November 2015 VA examiner that there is no link between pleural plaques and obstructive sleep apnea in the scientific literature is an untrue statement. She continued that pleural plaques reduce the exchange of oxygen and carbon dioxide. It is a restrictive lung disease, which causes poor sleep quality, frequent arousals, hypoxia, and hypercapnia, which were documented on the Veteran’s sleep study. The nurse practitioner opined that it was at least as likely as not that the Veteran’s service-connected bilateral pleural plaques contributed to and/or at least aggravated the Veteran’s obstructive sleep apnea. The May 2018 memorandum decision concluded that the April 2017 Board decision denying the Veteran’s claim was based on an insufficient analysis that gave more probative value to the opinions against the Veteran’s claim. Upon careful review of the record, the Board finds that the evidence in this case to be in relative equipoise. The medical evidence provides contrasting, yet well-reasoned viewpoints concerning the nature and etiology of the Veteran’s sleep apnea, and the reports are adequate for adjudication. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Reasonable doubt created by the approximate balance of evidence must be resolved in favor of the Veteran. Affording the Veteran the benefit of the doubt, the Board finds the evidence is at least in equipoise as to whether his diagnosed sleep apnea is secondary to his service-connected bilateral pleural plaques. As the evidence of record is in relative equipoise, the benefit of the doubt rule will be applied. Consequently, service connection is warranted. 38 U.S.C. § 5107 (b). REASONS FOR REMAND 1. Entitlement to service connection for a lumbar spine disability, to include as secondary to service-connected disability, is remanded. The May 2018 memorandum opinion stated that neither the Board nor the November 2015 VA examiner’s etiology opinion considered the Veteran’s contention that he “was given a spinal for his left knee” and that this “spinal” … “caused mid-back pain.” The Veteran also suggested that lifting heavy ammunition began the deterioration that resulted in his present back disorder. Remand is needed for an addendum opinion that specifically considers the Veteran’s lay statements. 2. Entitlement to service connection for a left knee disability is remanded. The May 2018 memorandum decision concluded that the Board erred by relying on an inadequate November 2015 VA examiner’s opinion concerning the etiology of the Veteran’s left knee disability. Notably, the examiner’s opinion failed to discuss the fact that the Veteran was treated for swelling of the knees that lasted for two weeks in July 1957. He was also diagnosed with internal derangement of the left knee in December 1957. Further, the memorandum decision stated that the Board should have made specific credibility determinations about the Veteran’s lay statements. Remand is needed for an addendum VA opinion on this issue. Since the claims file is being returned it should be updated to include any outstanding VA treatment records. See 38 C.F.R. § 3.159 (c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all outstanding VA treatment records regarding the Veteran dated from November 2015 to the present. 2. After completion of the above, obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s diagnosed degenerative arthritis of the spine is related to any incident of active duty service, to include the Veteran’s reports of receiving a “spinal” for his left knee during active duty service or his suggestion that lifting heavy ammunition during service began the degeneration in his back that he currently suffers from today. The examiner should also provide an opinion on whether the Veteran’s back disability was either proximately due to or aggravated beyond its natural progression by his service-connected left knee scar. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s diagnosed left knee osteoarthritis is at least as likely as not had its onset in or was otherwise related to any incident of active duty service. The examiner is asked to specifically consider and comment on the relevance of medical evidence in the record showing that the Veteran was treated for swelling of the knees that lasted for two weeks in July 1957, and that he was diagnosed with internal derangement of the left knee in December 1957. M. E. Larkin Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jack S. Komperda, Counsel