Citation Nr: 21000584 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 14-35 256 DATE: January 5, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea, including as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran had active duty service from February 1984 to September 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in April 2016. A copy of the transcript has been reviewed and associated with the claims file. This matter was before the Board in August 2018 and August 2020, on which occasions it was remanded for additional evidentiary development. Entitlement to service connection for obstructive sleep apnea, including as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. The Veteran has been diagnosed with obstructive sleep apnea and asserts that it was incurred in service and/or is secondary to his service-connected PTSD. In the alternative, he indicated that his obesity was caused by his service-connected PTSD, including causing less motivation to exercise and contributing to his poor food choices, and was a substantial factor in developing sleep apnea. The Veteran’s service-treatment records reveal that he had sleep problems secondary to stress in January 1988. In May 1991, he complained of sleeping issues and began to keep a sleep journal. In a February 2013 statement, the Veteran’s military colleague noted that the Veteran snored and would stop breathing while in service. In a February 2013 statement, the Veteran indicated that his wife and military colleagues complained of his snoring during his 1990-1991 tours. Furthermore, in an October 2018 statement, he indicated that due to his PTSD, he was less motivated to exercise and that his mental health led him to make poor food choices, including sweets and comfort foods. Lastly, the Veteran testified at the hearing in April 2016 and indicated that his wife would tell him that he stopped breathing while in service and would complain of his snoring after service, but he did not realize that it was a disorder. Pursuant to the Board’s remand instructions, a medical opinion was provided in October 2020. The examiner concluded that the Veteran’s sleep apnea was not related to his period of active service, including his service-connected PTSD. The examiner noted that it was statistically more likely that the Veteran’s obstructive sleep apnea was secondary to his increasing age, weight, and gender. Furthermore, there was no indication in the literature that the nature of the Veteran’s service-connected conditions increased the likelihood of his obesity beyond that of the general population. Lastly, the examiner indicated that there was no clinical research establishing the level of activity and exercise and PTSD given that the initial reduction in excess weight is a function of willful caloric intake. After a review of the evidence, the Board finds that the October 2020 opinion is insufficient to determine the present claim. In this regard, the examiner failed to acknowledge or discuss the Veteran’s in-service complaints of sleeping issues, his statement regarding his mental health leading him to make poor food choices, and his in-service snoring. The examiner did not provide an opinion as to whether his obesity was aggravated by his service-connected PTSD pursuant to the remand instructions. The examiner appeared to rely solely on general statistical data rather than discussing the Veteran’s specific case and evidence. Given the procedural background of this matter, the Board finds that a medical opinion is warranted by an ENT [Ears, Nose, Throat] specialist and/or Somnologist. This matter is REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran’s updated VA treatment records from July 2020 to the present. 2. After completion of #1, forward the claims file, including a copy of this remand, to an ENT specialist and/or Somnologist for an opinion regarding the etiology of the Veteran’s obstructive sleep apnea (OSA). The claims file, including a copy of this remand, must be made available to the examiner and such review should be noted in the examination report. The examiner should respond to the following: A. Is it at least as likely as not (probability of at least 50 percent) that the Veteran’s OSA had its onset in and/or is otherwise etiologically related to his period of active service? B. If not, is it at least as likely as not (probability of at least 50 percent) that the Veteran’s OSA was caused by his service-connected PTSD? If not, is it at least as likely as not (probability of at least 50 percent) that his OSA has been aggravated (any incremental increase in disability) by his service-connected PTSD? If aggravation is found, is there medical evidence created prior to the aggravation or between the aggravation and current level of disability that shows a baseline of his OSA prior to aggravation? C. If not, (i) is it at least as likely as not (probability of at least 50 percent) that the Veteran’s obesity was caused and/or aggravated by his service-connected PTSD? (ii) If so, indicate whether the obesity/weight gain as a result of the service-connected PTSD was a substantial factor in causing OSA; and, (iii) whether it is at least as likely as not that OSA would not have occurred but for the obesity/weight gain caused and/or aggravated by the service-connected PTSD? Inform the examiner that all lay evidence must be considered, including the statements submitted by the Veteran. Inform the examiner further that, under applicable legislation and VA requirements, obesity is not a disease or disability, but it may act as an “intermediate step” between a service-connected disability and a current disability that may be service-connected on a secondary basis. The examiner must provide a comprehensive rationale for each opinion provided. The examiner should discuss the in-service treatment records confirming sleep problems secondary to stress, hearing testimony and statements submitted by the Veteran and his friend in February 2013 and the Veteran’s statement in October 2018, which indicated that he snored in service and that his PTSD caused him to become less motivated to exercise and contributed to his poor food choices. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. (Hurley) Merrick 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.