Citation Nr: 1807837 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 14-14 472 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to an increased rating for posttraumatic stress disorder (PTSD), currently evaluated as 50 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from October 1968 to May 1970 and from December 1974 to November 1978. These matters come before the Board of Veterans' Appeals (Board) from May 2012 and June 2014 rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO) in Nashville, Tennessee. In July 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Sleep Apnea The Veteran was diagnosed with sleep apnea in July 2011, approximately four decades after separation from service. The Veteran contends that he had sleep apnea in service, and/or that his sleep apnea is related to, or aggravated by, his service-connected PTSD. The Board finds that further development may be useful. The Veteran's May 1970 Report of Medical History for separation purposes, his December 1974 Report of Medical History (for reenlistment purposes), and his October 1976 medical history report for dental purposes all reflect that he denied frequent trouble sleeping, or frequent or severe headaches. A May 2004 record reflects that the Veteran was a smoker and denied frequent headaches. Records in November 1999, December 1999, October 2001, March 2004, November 2004 note sinusitis or sinus problems. June 2005 VA records reflect that the Veteran abused tobacco, and that he had radiology evidence of lungs consistent with mild emphysema/COPD A September 2005 record from Clarksville Pulmonary and Critical Care (Dr. J. Kadakia) reflects a sleep history of "heavy snoring for many years. Wife has observed him to stop breathing at night multiple times." It was noted that the Veteran was a 35 pack year smoker, still smokes a pack a day, and experiences a lot of nasal congestion in the spring and fall. He was diagnosed with a granular in the lung, chronic allergic rhinitis, sinusitis, recurrent bronchitis, COPD, and it was noted that OSA should be ruled out. The plan was to obtain an overnight sleep study. There are no records associated with the claims file which reflect that the sleep study was performed. The claims file includes a buddy statement from T.L. who wrote that he witnessed the Veteran snore in service and that he had to tell the Veteran many times that the Veteran needed to see a doctor about his condition because he would snore and then appeared to stop breathing for a few seconds. This buddy statement is inconsistent with the Veteran's statement that during his during his time in service, sleep apnea was unheard of and he was unaware that he stopped breathing in his sleep (see October 2012 statement). The claims file incudes two opinions from Dr. T. Zurawek. In a February 2012 opinion, he stated as follows: Based on [the Veteran's] lack of obesity throughout his lifetime, [his] diagnosis of OSA would have been present throughout his entire adulthood and be directly related to his anatomy. In an October 2014 opinion, Dr. T. Zurawek stated that since the Veteran has a diagnosis of PTSD and has normal body mass index, it is more likely than not that his sleep apnea is directly related to PTSD "since there is clear clinical evidence that [PTSD] is usually worsening sleep disorders including sleep disorder breathing, sleep quality and sleep fragmentation." Neither of Dr. Zurawek's opinions, alone or together, are enough to grant the claim for OSA. His 2012 opinion is unclear as to whether OSA began in service or is related to service, and his 2014 opinion does not provide a clear rationale for its conclusion. Also associated with the claims file is a May 2015 article from a website (Science daily) which notes that a study of 195 Veterans found that 69.2 percent had a high risk for sleep apnea, and that this risk increased with PTSD symptoms. The mean age for the participants in the study was 33 years. The Veteran was 56 at the time of the initial clinical record about possible OSA, and 62 at the time of the 2011 diagnosis of mild to moderate OSA. The claims file also includes a February 2014 VA opinion in which the clinician (Dr. Ellis) stated that OSA is caused by actual physical anatomical obstruction in the upper airway, and thus it is less likely than not that OSA is due to PTSD. In an August 2015 opinion, Dr. Abney opined that there is no medical evidence that the Veteran's OSA has been permanently aggravated by his PTSD. The clinician went on to note as follows: OSA is due to an anatomical problem in the posterior pharynx and not related to any psychological condition. PTSD would not be expected to cause or permanently aggravate OSA. The veteran's physician stated that since his body mass index was normal that it was more likely that not that his sleep apnea is directly related to his PTSD. This would not be an accurate statement as even thin individuals or those with normal weight can develop OSA. Obesity predisposes one to develop OSA and it usually aggravates the OSA as the obesity increases, but its absence does not mean that one can not develop OSA without obesity. PTSD could be associated with insomnia but this is a distinct and separate condition from OSA. It is noted in "Up To Date": RISK FACTORS - The important risk factors for OSA are advancing age, male gender, obesity, and craniofacial or upper airway soft tissue abnormalities. Additional risk factors identified in some studies include smoking, nasal congestion, menopause, and family history. Rates of OSA are also increased in association with certain medical conditions, such as pregnancy, end-stage renal disease, congestive heart failure, chronic lung disease, stroke. Based on review of the record as a whole, the Board finds that the Veteran should be afforded another opportunity to provide VA with all records from Clarksville Pulmonary and Critical Care (Dr. J. Kadakia) with regard to possible OSA, as well as all sleep studies performed pursuant to the 2005 clinical plan to obtain such a study. Such evidence would provide a possible earlier onset date than 2011. In addition, a supplemental clinical opinion may be useful. The clinician should opine as to whether it is as likely as not that the Veteran's PTSD aggravates his OSA and should refrain from using the term "permanent" in rendering his opinion. PTSD The most recent VA examination is from June 2014. The Veteran contends that his PTSD has increased in severity since that time (see Board hearing transcript, pages 17 and 18). Thus, the Board finds that another examination is warranted. See Snuffer v. Gober, 10 Vet. App. 400 (1997). If the Veteran contends that he has had physical altercations or other serious incidents due to his PTSD, it would be helpful if the examiner would note the approximate years of such so that the Board can ascertain if they occurred during the rating period on appeal. Accordingly, the case is REMANDED for the following action: 1. Attempt to associate all outstanding non-VA and VA clinical records for PTSD and OSA with the claims file, to include all records from 2005 to present from Clarksville Pulmonary and Critical Care (Dr. J. Kadakia) with regard to possible OSA, as well as all sleep studies performed pursuant to the 2005 clinical plan to obtain such a study. 2. Schedule the Veteran for an examination to determine the current severity of his PTSD. If the Veteran contends that he has had physical altercations or other serious incidents due to his PTSD, it would be helpful if the examiner would note the approximate years of such so that the Board can ascertain if they occurred during the rating period on appeal. 3. Obtain a clinical opinion which responds to the following: Is it is as likely as not that the Veteran's PTSD aggravates (causes any increase in disability with regard to) his OSA. The clinician should refrain from using the term "permanent" in rendering an opinion. The clinician is requested to consider and discuss as necessary the May 2015 article from the Science Daily website which discusses a study of 195 Veterans with PTSD and a mean age of 33 who had a high risk for sleep apnea. 4. Following completion of the above, please readjudicate the issues on appeal. If a benefit sought is not granted, issue a Supplemental Statement of the Case and afford the appellant and his representative an appropriate opportunity to respond. Thereafter, the case should be returned to the Board, as appropriate for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ M.C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).