Citation Nr: 21061558 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 16-36 396 DATE: October 4, 2021 REMANDED Service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected posttraumatic stress disorder (PTSD). REASONS FOR REMAND The Veteran served on active duty from May 1987 to January 1990. The Veteran had additional active duty with the Mississippi Air National guard from June 2004 to August 2004, from August 2005 to October 2005, and from May 2011 to October 2011. The case is on appeal from an August 2015 rating decision. In pertinent part, the August 2015 rating decision granted service connection for Urolithiasis/Nephrolithiasis with a noncompensable rating, and denied service connection for bilateral knee disabilities, a cervical spine disability, carpal tunnel syndrome, hypogonadism, and obstructive sleep apnea. In an August 2015 notice of disagreement (NOD), the Veteran appealed the foregoing issues. Following a May 2016 statement of the case (SOC), the Veteran limited the scope of his appeal to the issue of service connection for sleep apnea. See July 2016 VA Form 9. As such, that is the only issue on appeal. The Veteran testified at a Board hearing in July 2021. Shortly thereafter, the Veteran submitted additional evidence in the form of lay statements and medical records and waived initial RO consideration. Service connection for OSA. The Veteran contends that service connection for OSA is warranted as his disability had its onset during active military service. See April 2016 Statement in Support of Claim. Alternatively, the Veteran contends that service connection for OSA should be considered as secondary to his service-connected PTSD. See July 2021 VA Form 9 (Appeal to the Board of Veterans' Appeals). The Board finds that further development must be conducted prior to the adjudication of the claim on the merits. While service personnel records (SPRs) partially associated with his claims file suggest that some of the Veteran's active duty service while in the Mississippi Air National Guard (ANG) qualifies him as a Veteran for VA benefits (i.e. VADIR information report), DD-214s, Military Orders, or any official military documentation to that extent in order to verify the authority under which such service was provided have not been associated with the claims file. The Board notes that in response to a request of records by the RO, a Department of the Army and Air Force letter received in August 2015 states that some of the Veteran's service treatment records (STRs) have not been found. However, the letter does not mention anything regarding SPRs. As such, any outstanding SPRs and STRs, to include the Veteran's dates of service must be obtained. See 38 C.F.R. § 3.159(c)(2). Available STRs show that shortly after a period of active duty service in October 2004, the Veteran reported "still feeling tired after sleeping." See January 10, 2005 Post-Deployment Health Questionnaire (HQ) in connection with service in support of Operation Iraqi Freedom (OIF). In his July 2016 VA Form 9, the Veteran stated that it was during his service in 2005, while serving in support of disaster relief operations for Hurricane Katrina, that he was told for the first time by a fellow airman that he had a very loud snoring and was "stopping breathing" in his sleep. Additional lay statements in support of his claim were received in July 2021. Mr. D.A.L indicated that he served with the Veteran during OIF. He stated that the Veteran's loud snoring and multiple mentions of fatigue and tiredness from inadequate sleep were well known by him and other members of the medical crew who rested in the same quarters area as the Veteran. In a separate lay statement, Mr. B.D., a Registered Nurse, indicated that while serving with the Veteran in support of Operation Enduring Freedom (OEF), he and other servicemembers noted when going to the Veteran's room that his snoring respirations followed long periods of apnea. Mr. B.D. indicated that at the time the condition seemed like something which needed to be treated and diagnosed. In a third lay statement, Mr. C.P., a fellow servicemember and Assistant Chief Nurse, indicated that he was the Veteran's roommate while "on Orders" at Volk Field in 2012. Mr. C.P. stated that the Veteran "was difficult to room with and get rested sleep because of his sleep patterns" as the Veteran would "snore blaringly with long pauses of absence of breathing." Mr. C.P. indicated that on numerous occasions he attempted to wake the Veteran for his lack of breathing during sleep. Mr. C.P. also witnessed the Veteran's bouts of restlessness and how difficult it was for the Veteran to wake up in the mornings. The Veteran was afforded a VA examination in connection with this claim in in July 2017. The VA examiner opined that the Veteran's sleep apnea was not proximately due to or the result of his service-connected PTSD. The examiner stated that while "there are suggestive studies noting an association between PTSD and sleep apnea," such association has not been clearly identified as there are no confirmed studies that document a cause and effect between PTSD and sleep apnea. She further noted that medical literature has not confirmed a causative link between PTSD and the development of OSA. The examiner also noted that the Veteran's PTSD medication does not aggravate his sleep apnea. The examiner did not provide a direct nexus opinion. A Sleep Apnea Disability Benefits Questionnaire (DBQ) was received in July 2021. The Veteran's VA attending physician, Dr. S.T., indicated that the Veteran's apnea history includes snoring, observed apnea, and daytime somnolence during military service. The examiner noted that persistent daytime somnolence is one of the signs attributed to his sleep apnea. While the examiner indicated that there is no causal relationship between the Veteran's sleep apnea and his PTSD, a rationale for her opinion was not included in the DBQ. Moreover, a direct nexus opinion was neither provided. The Board finds that the above medical opinions are not sufficient to decide the Veteran's claim at this time. First, the July 2017 VA examination report does not contain a direct nexus opinion and which is the Veteran's initial contention. In addition, while the examiner provided secondary nexus opinion, it seems to appear that the examiner relied her opinion on medical literature that she failed to cite in the report. Moreover, the opinion appears contradicting in nature as the examiner first noted that there are "suggestive studies" noting an association between PTSD and sleep apnea, but then indicated that medical literature has not confirmed a causative link between PTSD and the development of sleep apnea. The report does not show how, in light of the particular circumstances of this case, the examiner reached her final conclusion or why confirmation of an association from a medical standpoint is necessary, as opposed to the additional medical literature suggesting an association between the two. As to the Veteran's VA attending physician's opinion, the DBQ does not contain a direct nexus opinion. Furthermore, the examiner limited her secondary nexus opinion to state that "it is as likely as not that PTSD symptoms can be exacerbated by untreated sleep apnea." First, the opinion fails to clarify the secondary nexus question, that is, whether the Veteran's sleep apnea is proximately due to or caused by his PTSD and not the other way around. Notwithstanding, her statement indicating a history of "untreated sleep apnea" rather suggests a longstanding history that must considered in addressing the direct nexus question, particularly in light of the Veteran's statements of signs or symptoms dating back to 2005. For the reasons set forth above, the Board finds that a remand is warranted for another VA examination and opinion by an appropriate medical professional to comment on the nature and etiology of the Veteran's sleep apnea, either as directly related to service or as secondary to his service-connected PTSD. In light of the remand, updated VA treatment records must be obtained. The matter is REMANDED for the following action: 1. Obtained any updated VA treatment records dated since July 2017. 2. Thereafter, arrange for further development to obtain from JSRRC, NPRC, or any other official source, any evidence, including Military Orders and DD-214s reflecting the Veteran's ANG service, to include all periods of ACDUTRA, INACDUTRA, active Federalized National Guard service in support of OIF and OEF, and under Title 32 U.S.C. in 2005 in support of disaster relief operations for Hurricane Katrina. 3. Thereafter, forward the claims file to an appropriate medical professional for a VA examination and opinion with respect to the sleep apnea claim. Any clinically indicated diagnostic testing should be performed. The examiner should first identify whether the Veteran has sleep apnea. If so, the examiner is also asked to provide an opinion as to what date did the claimed sleep apnea manifest to the extent it can be reasonably determined. (i) The examiner is then asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the identified sleep apnea had its onset during, or is otherwise related to, the Veteran's military service. (ii) If no to (i), the examiner is the asked to 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 caused, or aggravated by, the Veteran's service-connected PTSD. Aggravation is an increase in severity beyond the natural progress of the condition. Consideration should be given to: (1) The January 2005 Post-Deployment HQ in which the Veteran reported still feeling tired after sleeping; (2) the July 2021 DBQ in which the VA attending physician noted that persistent daytime somnolence is one of the signs attributed to his sleep apnea and a history of "untreated sleep apnea;" (3) the Veteran's statement indicating that it was in 2005, during service in support of Hurricane Katrina that he was told for the first time of his "stopped breathing" during his sleep; (4) the additional buddy lay statements accounting for witnessed apnea events during service in OIF and OEF. A complete rationale or explanation should be provided for any opinion reached. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board William Pagan, 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.