Citation Nr: 18145870 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 16-50 665 DATE: October 30, 2018 REMANDED 1. Entitlement to an initial disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) with primary insomnia is remanded. 2. Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected PTSD with primary insomnia, is remanded. 3. Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1981 to November 2006. 1. Entitlement to an initial disability rating in excess of 70 percent for PTSD with primary insomnia. The Board finds that remand is warranted to fully assist the Veteran with development of his claim. Specifically, the record includes medical records from the Veteran’s private psychiatrist, Dr. H. J., current up to February 2016. A February 2017 VA medical record provides indication that the Veteran is still receiving current treatment from the private psychiatrist for his PTSD. Therefore, since the most recent medical records from the Veteran’s private psychiatrist are from February 2016, the Board finds that attempts must be made to obtain any outstanding records from the private psychiatrist, particularly since February 2016. Further, VA medical records have been added to the record since the issuance of the Statement of the Case in September 2016 and there is no indication that the Regional Office reviewed these records or that the Veteran waived such review. 2. Entitlement to service connection for OSA, to include as secondary to service-connected PTSD with primary insomnia is remanded. The Veteran asserts that service connection for OSA is warranted because it was caused by or aggravated by his service-connected PTSD. Service connection may be granted for a disability that is proximately due to, or the result of, a service-connected disability. See 38 C.F.R. § 3.310 (a). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or aggravated by, a service-connected disease or injury. In September 2015, a VA medical opinion was provided on the Veteran’s claimed OSA. The examiner stated that there is no known causal relationship between PTSD and/or its treatment and OSA, however there is a strong correlation between overweight/obesity and OSA. She provided the opinion that it is less likely as not that the Veteran’s OSA is proximately related to his PTSD, rather it is at least as likely as not related to his being overweight. In October 2015, the Veteran submitted a letter from his private psychiatrist, who provides an opinion that it is at least as likely as not that the Veteran’s sleep apnea is aggravated by his PTSD. The private psychiatrist stated that PTSD might not cause sleep apnea, but might exacerbate the symptoms because there is more REM sleep in PTSD and the apnea episodes happened during REM sleep due to the decrease in the muscle tone and the airway, therefore PTSD worsens sleep apnea. The private psychiatrist provided the study Association of Psychiatric Disorders and Sleep Apnea in a Large Cohort in support of his opinion. In January 2016, an addendum opinion was provided by the September 2015 examiner. She stated that based on pathophysiology associated with OSA, while PTSD can certainly disrupt sleep architecture and consequently sleep quality, it does not actually cause increased apnea/hypopnea events. She opined that it is less likely as not that Veteran’s OSA was aggravated beyond natural progression by PTSD. The Board finds that an addendum VA opinion is necessary for clarification, specifically, the Board requests that the examiner directly address the medical opinion and study provided by the Veteran’s private psychiatrist in October 2015 in addressing whether the Veteran’s OSA was aggravated beyond natural progression by PTSD. 3. Entitlement to a TDIU rating is remanded. A determination with respect to the claims for (1) increased evaluation of PTSD and (2) service connection for OSA may have an impact upon consideration of the issue of entitlement to TDIU on appeal; the Board finds that these issues are inextricably intertwined. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer the claim on appeal pending the adjudication of the inextricably intertwined claims. As such, Board consideration of the merits of the Veteran’s TDIU claim is deferred pending adjudication of the Veteran’s claims indicated above. The matters are REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records, related to treatment of his 1) PTSD and 2) OSA should be obtained. Any negative response should be in writing and associated with the claims file. The Veteran is specifically requested to provide authorization for VA to obtain updated medical records from his private psychiatrist, Dr. H. J. from February 2016. In addition, obtain any outstanding VA treatment records and associate them with the claims file. 2. Return the Veteran’s claims file to the VA examiner who provided the medical opinions in September 2015 and January 2016 for the Veteran’s claimed OSA, or to a qualified medical professional if the examiner is unavailable, to provide an addendum opinion. If the examiner finds that an examination is necessary, then schedule an examination. If an examination is scheduled, any indicated evaluations, studies, and tests deemed to be necessary by the examiner should be performed. The examiner is to review the record and examine the Veteran, if determined necessary. The VA examiner’s attention is drawn to the following: • The Veteran served on active duty from August 1981 to November 2006. • The Veteran is currently service-connected for PTSD with primary insomnia. • The August 2007 sleep study upon which the Veteran’s OSA diagnosis was based. See VBMS entry with document type, “Correspondence,” receipt date 08/31/2015. • The September 2015 VA medical opinion. See VBMS entry with document type, “C&P Exam,” receipt date 09/25/2015. • The October 2015 medical opinion from the Veteran’s private psychiatrist and the study Association of Psychiatric Disorders and Sleep Apnea in a Large Cohort. See VBMS entry with document type, “Medical Treatment Record - Non-Government Facility,” receipt date 10/16/2015, on p. 4-11. • The January 2016 addendum VA medical opinion. See VBMS entry with document type, “CAPRI,” receipt date 01/26/2016. • Of record are the medical records from the Veteran’s private psychiatrist. See VBMS entry with document type, “Medical Treatment Record – Non-Government,” receipt date 03/17/2016. In response to the below questions, the Board requests you provide a detailed rationale in order for it to be legally adequate for the Board to decide the claim. The examiner is asked to answer the following questions: a) Is the diagnosed OSA at least as likely as not (50 percent or greater likelihood) aggravated (permanently worsened beyond the natural progression of the disorder) by the service-connected PTSD with primary insomnia? Please explain your answer by citing to supporting clinical data and/or medical literature, as deemed appropriate. b) Please address the October 2015 medical opinion from the Veteran’s private psychiatrist and the study Association of Psychiatric Disorders and Sleep Apnea in a Large Cohort. c) If the examiner finds that the service-connected PTSD with primary insomnia permanently aggravates the Veteran’s OSA, the examiner is asked to state whether there is medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for OSA prior to aggravation. If the examiner is unable to establish a baseline for OSA prior to the aggravation, he or she should state such and explain why a baseline cannot be determined. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. The examiner shall then explain whether the inability to provide a more definitive opinion is the result of a need for more information and indicate what additional evidence is necessary, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. Thereafter, the AOJ should complete any development deemed necessary, and based on the entirety of the evidence, readjudicate the claims of entitlement to (1) an increased rating for PTSD, (2) service connection for a bilateral ankle disability, and (3) TDIU. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Cheng, Associate Counsel