Citation Nr: 21001382 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 17-01 590 DATE: January 7, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. REASONS FOR REMAND The Veteran served in the United States Army from October 1986 to April 1987, from June 2006 to October 2007, and from August 2009 to October 2010. The Veteran is a Gulf War Era Veteran with service in Southwest Asia. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A hearing transcript is associated with the claims file. The Board notes that the claim for service connection for difficulty sleeping was previously denied in unappealed rating decisions dated March 2008. Sleep apnea is a new and distinctly diagnosed disability that did not exist when the prior claim for service connection for difficulty sleeping was previously considered, and thus was not a part of the previously-denied claim for service connection for difficulty sleeping due to service-connected PTSD. See Boggs v. Peake, 520 F.3d 1330, 1335-36 (Fed. Cir. 2008) (citing Ephraim v. Brown, holding that claims based upon distinctly diagnosed diseases or injuries must be considered separate and distinct claims, 82 F.3d 399, 400-02 (Fed. Cir. 1996)). Because sleep apnea is a new disability that is separate and distinct from difficulty sleeping, which was considered a symptom of PTSD, and has not been previously considered in the March 2008 rating decision, new and material evidence is not needed, and the Board will adjudicate the claim. Entitlement to service connection for obstructive sleep apnea is remanded. The Veteran contends: (1) OSA symptoms first manifested in service although it was later diagnosed; (2) OSA is due to or the result of in-service injury from inhalation of particulate matter while in Southwest Asis to include burn pits; (3) OSA is secondary to service connected posttraumatic stress disorder (PTSD), noted that his symptoms of PTSD make it hard to keep his CPAP on at night and/or PTSD caused his obesity which in turn caused his OSA; (4) OSA is secondary to service-connected foot disability because it cause his obesity which in turn caused his OSA, noting that his foot disorder makes it hard to exercise). With regard to assertion (1), he reported experiencing symptoms, including insomnia, waking up with crippling nightmares, constantly feeling tired and being unable to function in 2007. See Hearing Transcript (October 2020). He stated that he noticed trouble sleeping in 2009 – 2010 during his second tour of duty. See NOD (January 2015). He reported going to sick call several times because he woke up gasping for air. See Correspondence (June 2014). The Veteran submitted a Buddy Statement to support this contention. See Buddy/Lay Statement (May 2014). The Veteran’s representative also argued that the Veteran was referred for his sleep study very soon after leaving service in 2010. See Hearing Transcript (October 2020). The Veteran’s wife testified that she noticed a difference in his sleep quality, including snoring and difficulty breathing at night, after returning from Southwest Asia. See Hearing Transcript (October 2020). With regard to assertion (2), the Veteran detailed his exposure to burn pits when stationed at Anaconda. See Hearing Transcript (October 2020). He stated that the smoke bothered him, and he developed chronic cough, for which he is service connected, and that his upper respiratory tract was indeed impacted by the smoke and particulate matter to which he was exposed. Id. The Veteran, via his representative, also submitted several articles to support this assertion. With regard to assertion (3), he contends that his OSA was secondary to his service-connected PTSD. He provided that his therapist at the Vet Center suggested he obtain a sleep study because of his PTSD. See Hearing Transcript (October 2020). He also reported that symptoms of PTSD make it hard to keep his CPAP on at night. Id. The Veteran’s representative argued PTSD contributed to OSA and is aggravating it beyond normal course, and submitted articles in support of that assertion. With regard to assertion (4), the Veteran stated that his service-connected left foot plantar fasciitis results in him moving less and exercising less, and PTSD makes it difficult to be motivated to be active, both of which contribute to his weight gain and resulting OSA. See Hearing Transcript (October 2020). To ensure that VA has met its duty to assist, remand is necessary. 38 C.F.R. § 4.2. The Board finds that the medical evidence of record is inadequate to fully address the Veteran’s contentions detailed above as to whether his OSA is etiologically related to service, to include as due to his environmental exposures in Southwest Asia (SWA) as well as secondary to service-connected PTSD and/or plantar fasciitis. As a threshold matter, the Board notes that the Veteran is service-connected for PTSD and left foot plantar fasciitis, and that VA treatment records reflect a diagnosis of OSA (as confirmed during a March 2012 sleep study). See CAPRI (August 2014)). The only medical VA opinion of record regarding the etiology of the Veteran’s diagnosed OSA dates to August 2014 and concludes that “it is less likely as not that the OSA is due to environmental hazards during military service in SW Asia.” See C&P Exam (August 2014). The examiner’s rationale was that the medical literature does not support Gulf War hazards as an etiology of OSA, and that the Veteran’s morbid obesity is likely the etiology of OSA. Id. First, the August 2014 VA medical opinion provided no opinion as to whether the Veteran’s OSA began during active duty. Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). The August 2014 VA medical opinion does not reflect any meaningful consideration of lay statements, including those from the Veteran and his buddy, indicating in-service symptoms of difficulty sleeping, waking up at night, constantly feeling tired and being unable to function as well as the Veteran’s theory that this represents an early manifestation of later diagnosed OSA. See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) (“the VA examiner’s failure to consider [the Veteran’s] testimony when formulating her opinion renders that opinion inadequate.”). The examiner indicated that the record was reviewed, but did not attempt to explain why the lay evidence of in-service sleep problems, including the Veteran’s reports of going to sick call several times because he woke up gasping for air, did not support that OSA had its onset in service. See Correspondence (June 2014). Second, the August 2014 VA medical opinion is inadequate because negative conclusion that the Veteran’s OSA is less likely due to environmental hazards in Southwest Asia is not supported with an analysis that is adequate for the Board to consider and weigh against other evidence of record. See Stefl v. Nicholson, 21 Vet. App. 102, 124-25. The opinion did not address specific exposures noted in the Veteran’s STRs and military personnel records, and those that the Veteran has explicitly claimed. The Board finds that the clinician’s conclusions regarding the Veteran’s Southwest Asia environmental exposures were not independently supported and, moreover, are contradicted by the Veteran’s first-hand report. Further, although the medical opinion contains clear conclusion, it does not provide a reasoned medical explanation connecting the conclusion to any identified supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). While the examiner cited to two medical articles in concluding that the most likely cause of OSA is obesity, the examiner did not address the Veteran’s specific disability factors. See Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009) (although general medical research may be considered, it cannot be the sole basis for examiner’s conclusion). Third, no opinion was obtained regarding whether OSA was caused or aggravated by the Veteran’s service-connected PTSD and/or plantar fasciitis, to include with obesity as the intermediary cause. The Board notes that the Veteran’s March 2011 VA examination indicates that the Veteran had been having nightmares that disrupt his sleep and were getting worse. See VA Examination (March 2011). The Veteran submitted a statement from his Hartford Vet Center social worker dated January 2016, where she indicated the Veteran’s report of his PTSD causing difficulty falling and staying asleep. See Medical Treatment Record - Non-Government Facility (September 2016). The Veteran also submitted several articles suggesting that veterans with service in Southwest Asia diagnosed with PTSD are at a higher risk of OSA. The Board also notes that obesity is not a disability for purposes of VA benefits; hence, it cannot be service connected on a direct basis. See Marcelino v. Shulkin, 29 Vet. App. 155, 158 (2018). However, indirect secondary service connection can be granted with obesity acting as an “intermediate step.” See VAOPGCPREC 1 2017 (Jan. 6, 2017). Specifically, a grant is warranted (1) if the service-connected disability caused the Veteran to become obese, (2) if obesity was a substantial factor in causing a subsequent disability, and (3) if the subsequent disability would not have occurred but for obesity. Id. Here, remand is necessary because (1) the Veteran, as well as his representative, has identified favorable medical studies that purportedly link PTSD and OSA, and (2) no examiner has opined on whether the Veteran’s service connected PTSD caused or aggravated his OSA, and (3) no examiner has opined on whether the Veteran’s service connected PTSD and/or plantar fasciitis caused him to become obese and, if yes, whether his obesity in particular is a substantial factor in causing his OSA. Given the lack of all necessary findings, as identified above, the Board finds that a new opinion based on full consideration of the Veteran’s documented medical history, history of environmental exposures and assertions detailed above is needed. See 38 U.S.C. § 5103A; § 38 C.F.R. § 3.159. Lastly, the Board notes that there are outstanding private and Vet Center treatment records. At his October 2020 hearing, the Veteran referred to his Vet Center therapist suggesting him to get a sleep study done for his PTSD. See Hearing Transcript (October 2020). While a request with an accompanying VA 21-4142 Authorization for Release of Information form was mailed to Hartford Vet Center, the VA 21-4142 Form submitted with that request dates to January 2016 and is no longer valid. The Board notes that the Veteran submitted a more recent VA Form 21-4142 in August 2020. A November 2020 response from Hartford Vet Center shows that the request could not be completed due to the January 2016 VA 21-4142 Form being outdated. VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). No records of this continued treatment have been associated with the Veteran’s file. Along the same lines, the Veteran’s August VA Form 21-4142 also indicated continued treatment with Dr. Joel Miller. The Veteran has submitted two pages of Dr. Miller’s treatment records and a statement that he has been treating the Veteran since October 1994 and specifically for OSA since 2012. See Medical Treatment Record - Government Facility (September 2016 and October 2020). However, no request to Dr. Miller has been submitted. Remand is necessary to obtain these records. See 38 C.F.R. § 3.159. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from August 2019 to the Present. 2. Obtain all treatment records from the VA Hartford Vet Center. The request should indicate that VA is seeking the actual records and not a summary of the Veteran’s treatment or symptoms. Document all requests for information as well as all responses in the claims file. 3. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers, including Dr. Miller, seen for his OSA since service discharge. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 4. Thereafter, obtain an opinion from an appropriate physician to determine the nature and etiology of the Veteran’s diagnosed OSA. The following should be addressed: (a.) Whether OSA, at least as likely as not, was first manifested during the Veteran’s active service considering his competent, credible report of waking up gasping for air as well as the buddy report of the same, and the Veteran’s wife’s testimony attesting to the Veteran’s snoring and difficulty breathing at night immediately after separation. (b.) Whether OSA is at least as likely as not related to an in-service injury, event, or disease to include Southwest Asia service and environmental exposures noted in STRs and reported by the Veteran, including but not limited to burn pits, sand/dust, smoke and particulate matter. In this regard, clinician should address whether onset of OSA first documented on a March 2012 sleep study is as likely as not related to the Veteran’s history of exposure to toxins and chemicals. The examiner should accept that the Veteran had the alleged exposure for the purpose of this opinion only. The examiner must consider studies and articles submitted by the Veteran and his representative as well as any recent medical studies or relevant literature. (c.) Whether it is at least as likely as not that: i. OSA is proximately due to service-connected PTSD, or ii. OSA is aggravated beyond its natural progression by service-connected PTSD. The examiner must consider studies and articles submitted by the Veteran and his representative as well as any recent medical studies or relevant literature. (d.) Whether is it at least as likely not (50 percent or greater probability) that any already service-connected disability, to specifically include left foot plantar fasciitis and PTSD, caused the Veteran to become obese. i. If so, was the resulting obesity a substantial factor in causing the Veteran’s obstructive sleep apnea? ii. If yes, but for the Veteran’s obesity, would the Veteran have developed obstructive sleep apnea? A complete rationale for each conclusion reached is required. The examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). 5. Ensure that the VA medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 6. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. M. Pesin 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.