Citation Nr: 21003265 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 16-15 392A DATE: January 21, 2021 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for coronary artery disease, to include as secondary to PTSD, is remanded. Entitlement to service connection for a stroke, to include as secondary to PTSD, is remanded. Entitlement to service connection for a stomach disability, to include as due to an undiagnosed illness, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU), prior to January 12, 2017, is remanded. Entitlement to specially adapted housing or a special home adaption grant is remanded. REASONS FOR REMAND The Veteran had active service from April 1990 to January 1993. He served in Southwest Asia. This claim was previously before the Board in January 2019. Additional development is needed before the claim can be decided on the merits. Parenthetically, the Board notes that additional issues that were addressed by the RO in a recent statement of the case in April 2019 were either withdrawn by the Veteran or are subject to a hearing request by the Veteran in his May 2019 VA Form 9. Therefore, these issues are not found to be subjects for current appellate review. The Veteran’s representative also submitted a statement of the Veteran’s behalf in December 2018 that included the web addresses (uniform resource locators, or URLs) to several medical studies regarding the association between PTSD and disabilities for which the Veteran is seeking service connection. Unfortunately, the URLs merely connect to a logon screen for ProQuest instead of the actual studies. The Board does not have access to ProQuest, and it is unknown whether individual VA examiners have access. It is not clear from the context of the December 2018 statement whether the representative was merely noting the existence of medical literature that support the theories of entitlement for the Veteran’s claim, or whether the intention was that the medical studies themselves be of record. The Veteran and his representative should submit copies of any medical studies and literature that they would like to be specifically considered for this claim. VA treatment records to October 2020 have been associated with the claims file. The RO should attempt to obtain all relevant VA treatment records dated from October 2020 to the present, while the claim is in remand status. Bell v. Derwinski, 2 Vet. App. 611 (1992). 1. Entitlement to service connection for sleep apnea, to include as secondary to PTSD, is remanded. The Veteran is seeking service connection for sleep apnea, to include as secondary to PTSD and due to obesity related to service-connected disabilities. The service-connected disabilities include right knee disabilities, right lower extremity radiculopathy, a left knee disability, lumbosacral arthritis, right hip disabilities, residuals of a right wrist fracture, residuals of a coccyx fracture, and chronic fatigue syndrome. Although obesity itself may not be service connected, VAOPGCPREC 1-2017 recognizes that 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 under 38 C.F.R. § 3.310(a). In this case, there is some support in the medical evidence of record for the contention that the Veteran's obesity acts as an intermediate step connecting his sleep apnea to his active service. The claim was remanded in January 2019 in order to obtain an opinion from a VA examiner regarding whether the Veteran’s current sleep apnea may be proximately due to, caused by, or aggravated by his service-connected disabilities, to include his service-connected PTSD. The examiner was also to provide an opinion regarding the relationship between the Veteran’s obesity and service, and whether the Veteran's obesity acts as an intermediate step connecting his sleep apnea to his active service. In August 2019 a VA examiner opined that it is less likely than not that the Veteran’s sleep apnea was proximately due to or was aggravated by a service-connected disability. It was noted that there was no medical evidence that PTSD causes obstructive sleep apnea. The studies noted by the Veteran indicate a possible association but fall short of confirming causation. In addition, the studies themselves also indicate that further studies were needed to confirm or deny causation. The examiner felt that the obstructive sleep apnea was most likely due to obesity and that the Veteran is male, and risk factors from “Up to Date” were cited. In October 2020 another VA examiner, Dr. B, wrote that according to “Up to Date,” obstructive sleep apnea is characterized by recurrent collapse of the velopharyngeal and/or nasopharyngeal airway during sleep. There is no medical evidence that shows that PTSD can produce recurrent collapse of the velopharyngeal and/or nasopharyngeal airway during sleep. Therefore, it is less likely than not that the Veteran’s sleep apnea is proximately due to or was permanently aggravated by PTSD. Dr. B continued that although multiple studies noted by the Veteran show a possible association of sleep apnea and PTSD, there is still no medical evidence to show that PTSD can produce recurrent collapse of the velopharyngeal and/or nasopharyngeal airway during sleep. Regarding obesity, Dr. B wrote that it has many risk factors and a causal relationship between the Veteran’s service-connected disabilities and obesity cannot be established. Dr. B continued that risk factors for obesity include “physical activity, diet and eating habits, sleep deprivation, cessation of smoking, hypothalamic obesity, Cushing’s syndrome, hypothyroidism, growth hormone deficiency, various mental health disorders, medications, socioeconomic group, and ethnicity.” It was more likely than not that the sum of the additional risk factors contributed more to the Veteran’s obesity than his service-connected disabilities. Therefore, it was less likely than not that obesity was proximately due to, the result of, or permanently aggravated the service-connected disabilities. Significant probative value cannot be given to Dr. B’s opinion on obesity because of an insufficient rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (“…[M]ost of the probative value of a medical opinion comes from its reasoning” and the Board “must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion.”). Dr. B noted that physical activity contributes to obesity. However, he did not include any analysis of whether the Veteran’s many service-connected disabilities, which include orthopedic disabilities, limit activity in a way that contributes to obesity. Furthermore, Dr. B noted that mental disorders can contribute to obesity, but did not include any analysis of whether the Veteran’s PTSD contributes. A new medical opinion on obesity must be obtained before the claim can be decided on the merits. In December 2020 the Veteran’s representative wrote that the Veteran fell asleep driving during service and that it is common knowledge that sleep apnea is often not diagnosed until long after onset. URLs were included for medical literature related to delayed diagnoses. The representative also alluded to the Veteran’s service personnel records having not been considered, and it is not clear if the complete records have been associated with the claims file. On remand, the complete service personnel records should be requested and associated with the claims file if they have not already been. In addition, a new medical opinion should be obtained on whether sleep apnea is related to service on a direct basis. The Veteran’s representative wrote in December 2020 that there was a recent consent order relating to Dr. B and his continuing medical education requirements. Therefore, the medical opinion should be from a provider other than Dr. B. 2. Entitlement to service connection for coronary artery disease, to include as secondary to PTSD, is remanded. In August 2019 a VA examiner opined that it was less likely than not that the Veteran’s diagnosed heart condition was proximately due to or the result of the Veteran’s service-connected PTSD. The examiner wrote that the conditions are not medically related. Furthermore, while PTSD and obesity are established risk factors for coronary artery disease, they are not established primary etiologies or aggravating factors of coronary artery disease or a coronary artery bypass graft in the medical literature. Probative value cannot be given to this opinion because it seems to be based on PTSD on obesity not being the primary or aggravating factor for heart disease, rather than on whether it was one of the factors. A new opinion must be obtained before the claim can be decided on the merits. 3. Entitlement to service connection for a stroke, to include as secondary to PTSD, is remanded. The Veteran suffered a cerebrovascular accident in May 2012. The examiner opined in August 2019 that it was less likely than not that the Veteran’s stroke was proximately due to or aggravated by PTSD. It was noted that the conditions are not medically related, and that the medical literature does not support a relationship. Regarding the use of NSAIDs for service-connected disabilities, the examiner wrote that there is no evidence that they were prescribed inappropriately or beyond the standard of care. The only excess risk from chronic NSAID use is elevated blood pressure, which can be a cause of a hemorrhagic stroke, which the Veteran did not have. That is a risk factor but not a primary etiology of an ischemic stroke. The medical literature does not show that obesity is a primary etiology or aggravating factor for a stroke. The Veteran’s representative’s December 2020 statement notes that the claim for service connection for a stroke includes as secondary to sleep apnea. The resolution of the claim for service connection for sleep apnea will therefore affect the resolution of this issue. As such, the claims are inextricably intertwined and must be considered together, and a decision by the Board on the Veteran’s claim for service connection for a stroke would, at this point, be premature. See Henderson v. West, 12 Vet. App. 11, 20 (1998). Entitlement to service connection for a stomach disability, to include as due to undiagnosed illness, is remanded. In August 2019 a VA examiner wrote that there is no objective evidence in the claims file demonstrating that the Veteran has a functional gastrointestinal disorder. VA treatment records show that the Veteran took ranitidine (Zantac) for his stomach for several years, including during the claims period. At private treatment in April 2018 and VA treatment as recently as June 2020, it was noted that the Veteran’s medical history included GERD. Furthermore, the June 2020 VA treatment records indicate that the Veteran was on Pepcid for GERD. Therefore, there is a current diagnosis of a stomach disability. A new medical opinion must be obtained before the claim can be decided on the merits, which should include discussion of the possible relationship between GERD and medications the Veteran takes for service-connected disabilities. Service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021. 38 C.F.R. § 3.317(a)(1). On remand, the medical opinion should include whether the Veteran has stomach symptomatology that is due to an undiagnosed illness under 38 C.F.R. § 3.317. 4. Entitlement to a TDIU prior to January 12, 2017 is remanded. 5. Entitlement to specially adapted housing or a special home adaption grant is remanded. The resolution of the above service connection claims may impact whether the Veteran satisfies the requirements for a TDIU, specially adapted housing, and a special home adaption grant, as set forth in 38 C.F.R. § 4.16(a). As such, the claims are inextricably intertwined and must be considered together, and a decision by the Board on the Veteran’s TDIU, specially adapted housing, and a special home adaption grant claims would, at this point, be premature. See Henderson v. West, 12 Vet. App. 11, 20 (1998). The matters are REMANDED for the following action: 1. Obtain VA treatment records from October 2020 to the present. 2. Obtain the Veteran’s complete service personnel records. 3. Inform the Veteran and his representative that they should submit copies of any medical literature they would like considered, including those cited in the representative’s December 2018 statement. They should be informed that there was difficulty accessing the articles online that they provided the URLs for. 4. After an appropriate period for the Veteran and his representative to respond, obtain a medical opinion regarding obesity and sleep apnea from an examiner other than Dr. B who provided the October 2020 opinion. The Veteran’s claims folder should be provided to the reviewer prior to completion of the opinion. The Veteran should not be scheduled for an in person examination. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s obesity was proximately due to or aggravated beyond its natural progression by a service-connected disability, including right knee disabilities, right lower extremity radiculopathy, a left knee disability, lumbosacral arthritis, right hip disabilities, residuals of a right wrist fracture, residuals of a coccyx fracture, and chronic fatigue syndrome. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea was incurred in service or is related to service. The examiner must also opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea was proximately due to or aggravated beyond its natural progression by PTSD. Finally, the examiner must opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea was proximately due to or aggravated beyond its natural progression by obesity stemming from his service-connected disabilities. The examiner should consider the representative’s December 2018 and December 2020 statements, including the citations to medical literature, and any additional medical literature submitted. Furthermore, the examiner should consider that the Veteran fell asleep driving during service. The examiner is advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. The examiner must discuss the medical rationale for all opinions expressed, whether favorable or unfavorable, and if necessary, citing to specific evidence in the file. If the examiner cannot provide his or her requested opinion without resorting to speculation, he or she should state why that is the case. 5. Thereafter, obtain an addendum to the August 2019 examiner’s opinions regarding coronary artery disease. The Veteran’s claims folder should be provided to the reviewer prior to completion of the opinion. The examiner must also opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s coronary artery disease was proximately due to or aggravated beyond its natural progression by PTSD. This opinion should be offered irrespective of other causes or aggravating factors. The examiner must also opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s coronary artery disease was proximately due to or aggravated beyond its natural progression by obesity. This opinion should be offered irrespective of other causes or aggravating factors. The examiner is advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. The examiner must discuss the medical rationale for all opinions expressed, whether favorable or unfavorable, and if necessary, citing to specific evidence in the file. If the examiner cannot provide his or her requested opinion without resorting to speculation, he or she should state why that is the case. 6. Obtain a medical opinion regarding a stomach disability. The Veteran’s claims folder should be provided to the reviewer prior to completion of the opinion. He should not be scheduled for an in person examination. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s stomach disability, to include GERD, is related to service. The examiner must also opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s stomach disability, to include GERD, is proximately due to or aggravated beyond its natural progression by the medication for PTSD or other service-connected disabilities. The examiner should specifically determine and state whether any of the Veteran’s gastrointestinal symptoms are not attributable to any known diagnostic entity. The examiner is advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. The examiner must discuss the medical rationale for all opinions expressed, whether favorable or unfavorable, and if necessary, citing to specific evidence in the file. If the examiner cannot provide his or her requested opinion without resorting to speculation, he or she should state why that is the case. 7. Perform any development deemed necessary for the claim for service connection for a stroke, including obtaining a medical opinion regarding its relationship with sleep apnea, if service connection is granted for that disability. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott Shoreman, 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.