Citation Nr: 18146757 Decision Date: 11/01/18 Archive Date: 11/01/18 DOCKET NO. 16-08 672 DATE: November 1, 2018 ORDER Entitlement to service connection for sleep apnea secondary to service-connected post-traumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for chronic obstructive pulmonary disease (COPD) due to in-service Agent Orange exposure is remanded. FINDING OF FACT The Veteran’s sleep apnea is related to his PTSD. CONCLUSION OF LAW The criteria for service connection for sleep apnea secondary to service-connected PTSD have been met. 38 U.S.C. §§ 1155, 5107(b) (West 2012); 38 C.F.R. § 3.310 (2017) REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from October 1967 to August 1970. Entitlement to service connection for sleep apnea secondary to PTSD The Veteran seeks service connection for sleep apnea secondary to his service-connected PTSD. The record reflects a current diagnosis for obstructive sleep apnea (OSA), and the Veteran is service-connected for PTSD. Thus, the remaining issue is medical evidence linking the two conditions as to either causation or aggravation. As to the issue of a nexus, the medical evidence of record is conflicting. The Veteran provided an August 2015 private opinion from a Dr. F. wherein the doctor opines that it is more probable than not that the Veteran’s sleep apnea is caused by his PTSD. Dr. F. stated that he reviewed the claims file, and he noted lay statements of record indicating that the Veteran’s sleep and breathing disruptions are concurrent with manifestations of his PTSD during sleep. In this regard, the Board notes that such statements are of record from the Veteran’s daughters and essentially state that he has trouble breathing while he is having PTSD related nightmares. Dr. F. stated that these factors alone would render it far more probative than not that PTSD is causing the Veteran’s OSA. Dr. F. stated that however, in addition to this connection in causation, medical studies on the statistical relationship between PTSD and OSA render it much more probable than not that PTSD is the cause of the Veteran’s sleep breathing disorder. The Board notes that Dr. F. provided these studies in the opinion letter. Following this opinion, the Veteran was afforded a VA examination in February 2016. The VA examiner opined that it is less likely than not that the Veteran’s sleep apnea is caused or aggravated by his PTSD. However, the opinion and rationale provided are inadequate as the VA examiner did not adequately consider or address Dr. F.’s August 2015 opinion. Nor did the VA examiner address the studies listed or lay statements that Dr. F. relied on. Moreover, in March 2017, Dr. F. provided an addendum opinion to the August 2015 opinion. In this addendum opinion, Dr. F. stated that existing medical evidence includes extensive CT imaging and endoscopy that exclude the usual anatomic obstructive causes (masses, strictures and stenoses, tissue hypertrophy or laxity) and are consistent with the conclusions of the Army and VA studies (those provided in the August 2015 opinion) of a different route of causation of OSA by PTSD. As Dr. F. reviewed the overall record and provided a reasoned explanation of his findings, supported by medical literature, the Board finds the addendum opinion probative. As there is no adequate negative opinion of record, the Board finds that the March 2017 addendum opinion of Dr. F. establishes a link between the Veteran’s sleep apnea and PTSD. As such, the appeal is granted. REASONS FOR REMAND Entitlement to service connection for COPD due to Agent Orange exposure is remanded. The Veteran asserts that his COPD is due to his in-service exposure to Agent Orange. The record reflects a current diagnosis for COPD. The Veteran’s in-service exposure to Agent Orange has also been established by the Agency of Original Jurisdiction. VA laws and regulations provide that if a Veteran was exposed to Agent Orange during service, certain listed diseases are presumptively service-connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). 38 C.F.R. § 3.309(e) lists the diseases covered by the regulation. The Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); Notice, 61 Fed. Reg. 41, 442-49 (1996); Notice, 72 Fed. Reg. 32,395-32,407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258-21,260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010). The Board notes that 38 C.F.R. § 3.309(e) specifically lists those diseases covered by the provision, and the list does not include COPD. Thus, a connection between the Veteran’s COPD and in-service herbicide exposure cannot be presumed. However, service connection could be established on a direct basis. As to direct service connection, there is no medical opinion of record linking the Veteran’s COPD and Agent Orange exposure. Nor has the Veteran been afforded a VA examination for COPD. However, the Board determines that an examination is now warranted per McClendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4). The record reflects a current diagnosis. The in-service event of Agent Orange exposure is established, which suggests an association between the Veteran’s COPD and his service. Yet, lacking a nexus opinion the record is insufficient to decide the claim. As such, the Board determines that the low bar of McClendon v. Nicholson has been met, and the duty to assist has been triggered. Accordingly, the matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate examiner to assess the nature and etiology of his COPD as related to his in-service Agent Orange exposure. The claims file and a copy of this remand must be made available to the reviewing examiner, and the examiner should indicate in the report that the claims file was reviewed. The examiner is also advised that the Veteran is competent to attest to observable symptoms. If there is a medical basis to support or doubt the Veteran’s reports of symptomatology, the examiner should provide a fully reasoned explanation. Any opinion(s) provided must be accompanied by a rationale. The examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s COPD was caused by or is otherwise related to his in-service exposure to Agent Orange or other herbicides. 2. After completing the above actions, readjudicate the claim on appeal. If the benefits sought on appeal remain denied, the Veteran should be furnished an appropriate Supplemental Statement of the Case and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Smith, Associate Counsel