Citation Nr: 20007799 Decision Date: 01/30/20 Archive Date: 01/29/20 DOCKET NO. 19-08 876A DATE: January 30, 2020 REMANDED Entitlement to service connection for sleep apnea, including as secondary to service-connected posttraumatic stress disorder (PTSD), coronary artery disease (CAD), or tinnitus, is remanded. REASONS FOR REMAND Entitlement to service connection for sleep apnea, including as secondary to service-connected PTSD, CAD, or tinnitus The Veteran contends that he suffers from sleep apnea since his time in service. In the alternative, the Veteran contends that his sleep apnea is secondary to his service-connected PTSD, CAD, and tinnitus. The evidence of record shows that the Veteran has been diagnosed with obstructive sleep apnea. See June 2016 private polysomnography report. The Board notes that a February 2019 VA medical opinion indicates that the Veteran’s sleep apnea is caused by his PTSD based on “medical literature.” However, the examiner did not provide any additional explanation or clarify what medical literature provided such a link. In contrast, in a March 2019 VA medical opinion, a separate VA examiner stated that he reviewed the prior examination report and came to different conclusion. Specifically, that medical and scientific literature fails to support a relationship between sleep apna and PTSD. References to medical concepts and literature were provided in support of this opinion. The Veteran submitted a March 2019 medical opinion linking his sleep apnea to his service-connected PTSD, CAD, and tinnitus. However, the Board notes that this medical opinion was authored by the attorney representing him in this matter, who also happens to be a medical professional. In Harvey v. Shulkin, 30 Vet. App. 10 (2018), the Court of Appeals for Veterans Claims addressed Rule 3.7 of the Model Rules of Professional Conduct which prohibits an attorney from acting as both a witness and advocate in the same case. It was noted that rule 3.7 was designed to prevent the blurring of lines between argument and evidence that could mislead or confuse a tribunal. Finally, the record also includes a an August 2019 private medical opinion linking the Veteran’s sleep apnea to his PTSD, CAD, and tinnitus. However, this medical opinion is identical to the March 2019 medical opinion provided by the Veteran’s attorney, which brings into question the credibility of the report. As the Veteran has submitted articles indicating a causal relationship between sleep apnea and PTSD, as well as the fact that the medical evidence of record contains conflicting evidence regarding the etiology of his sleep apnea, the Board finds that an updated VA medical opinion is required prior to adjudication of this issue. The matter is REMANDED for the following action: 1. Arrange for an appropriate health care provider to review the Veteran’s claims file and provide an opinion as whether: a) it at least as likely as not that the Veteran’s sleep apnea is (1) proximately due to his PTSD, or (2) aggravated beyond its natural progression by his PTSD? b) it at least as likely as not that the Veteran’s sleep apnea is (1) proximately due to his CAD, or (2) aggravated beyond its natural progression by his CAD? c) Is it at least as likely as not that the Veteran’s sleep apnea is (1) proximately due to his tinnitus, or (2) aggravated beyond its natural progression by his tinnitus? If the reviewing health care provider finds that physical examination of the Veteran and/or diagnostic testing is necessary, such should be accomplished. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morrad, Associate 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.