Citation Nr: 21061799 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 17-66 992 DATE: October 5, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from December 2004 to January 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Decision Review Officer (DRO) hearing in February 2017. In February 2020, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge (VLJ). Copies of the transcripts are of record. The issue was previously before the Board in July 2020 and April 2021. In July 2020, per the Veteran's Board testimony that he believed his OSA was not caused or made worse by his service-connected psychiatric disability, the Board characterized the issue as service connection for OSA (based solely on a direct basis). The issue was then remanded for a supplemental medical opinion and to consider the Veteran's mother's February 08, 2017 statement of sleep-disordered breathing in service, as true, for the limited purposes of providing an opinion. In a March 2021 written Brief presentation, his representative raised the theory of secondary service connection. The representative argued that the Veteran's OSA was secondary to his service-connected psychiatric disability and cited numerous studies addressing a connection between the two conditions. Hence, the April 2021 remand for an examination addressing the secondary theory. The Board finds that the July 2021 VA examination is incomplete. Entitlement to service connection for OSA is remanded. The Veteran has been diagnosed with OSA. He contends that it was incurred in service. In the alternative, he avers a secondary relationship to his bipolar disorder (previously claimed as a personality disorder with extreme depression). The Veteran's service treatment records (STRs) show complaints of difficulty sleeping while in service. For example, a clinical entry dated in July 2005 notes the Veteran's report to work to the "inability to sleep at night." Similarly, in August 2005, he reported that he was still having difficulty sleeping. The clinician assessed depression. In November 2005, he was diagnosed with bronchitis. During his December 2006 separation Report of Medical History, he reported trouble sleeping and stress-induced insomnia. The Veteran competently testified during his February 2020 Board hearing that while in service, he was due to take a sleep study test but "was transferred to another unit and was not able to get the sleep study done." Since then, his symptoms persisted, and it was not until a DRO order sleep study that he was diagnosed with OSA. The Veteran was afforded a VA examination in June 2021. The examiner provided a negative nexus for both the direct and secondary theories of his claim. Regarding the direct service connection, the examiner explained that although the Veteran reported issues with snoring and the stopping of breathing in service, the record was absent corroboration, except for a letter from [his] mother witnessing symptoms, along with difficulty sleeping. [While the Veteran] was seen in service for symptoms of insomnia (the inability to fall or stay asleep) and depression, insomnia is a common sign of depression. The earliest documentation of OSA in the records was a February 2015 sleep study, [which] is dark in records, but [the] Veteran does use a C-Pap and has medical notes stating a diagnosis of OSA. The examiner would be unable to opine that the sleep apnea began in service when there were [eight] years between discharge in 2007 and the sleep study in 2015. [The] examiner did note letters of supporting data for symptoms of snoring and difficulty breathing, but there is no continuity in care or treatment over that span of years. There is no diagnosis in service records for sleep apnea. Addressing the proximate cause of the secondary service connection claim, the examiner explained that although depression/bipolar may lead to sleep disturbances and insomnia and may be present in patients with bipolar disorder, it was not considered a risk or cause. Sleep apnea, he further explained, is considered an obstructive disorder and occurs when the throat muscles relax and block the airway. The risk factors included excess weight, enlarged tonsils, nasal congestion, male gender, and family history. Finally, regarding the aggravation prong of the secondary service connection, the examiner explained that the Veteran's sleep apnea had improved with the use of a C-Pap, and there were no known complications related to his sleep apnea. There was also no indication that his sleep apnea had progressed beyond its natural progression. The Board finds fault with the rationales provided for direct service connection and the aggravation prong of the secondary service connection claim. For the direct service, the examiner neglected to address the Veteran's reports of difficulty breathing in and after service. She primarily based her negative opinion on the absence of medical records showing a diagnosis of OSA in service and until February 2015. Regarding the aggravation prong, the examiner explained that sleep apnea had improved with the use of C-Pap, which the Veteran started in approximately 2015. She neglected to address the clinical entries of sleep difficulties even after his 2007 diagnosis of bipolar disorder and before his February 2015 diagnosis of OSA. Since the June 2021 supplemental medical opinion, the Veteran supplied a July 2021 dated statement wherein he stated that he did not know anything in service about OSA, only that he was waking up nightly gasping for air and trying not to choke. His symptoms persisted after service until he was diagnosed. In August 2021, he provided a lay statement from a fellow veteran/roommate, Sergent T. C. P., who attested to the Veteran's symptoms in service. Sergent T. C. P. stated that he noticed that the Veteran "would jerk suddenly, awake, gasping for air. If he was able to fall back to sleep, it was a light sleep and left him lethargic throughout the day. There were occasions when his snoring would wake [him] up, which turned into one of the things [he] took into consideration when an opportunity arose for [him] to move out of the barracks while still being assigned to the room." The Veteran's representative in August 2021 has provided additional articles/studies addressing a relationship between OSA and mental disorders. Also, he and the Veteran theorize that that OSA may be due to his weight gain from his psychiatric disorder or from his psychiatric medication. A review of the case file reflects that the Veteran has been diagnosed with obesity and that he had been prescribed medication for his bipolar disorder. Thus, a supplemental opinion is again warranted for an adequate medical opinion, including addressing the new theory. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Accordingly, the issue is REMANDED for the following action: 1. Provide the Veteran's claims file to a qualified clinician to provide a supplemental opinion for OSA. A physical or telehealth examination of the Veteran is only required if deemed necessary by the clinician. The entire claims file and a copy of this remand must be made available to the clinician to review. Although an independent review of the claims file is required, the Board calls the clinician's attention to the following: a. STRs dated in July 2005 noting the Veteran's report to work to the "inability to sleep at nights." b. STRs dated in August 2005, noting that he was still having difficulty sleeping. c. STRs dated in November 2005 noting a diagnosis of bronchitis. d. December 2006 separation Report of Medical History noting his trouble with sleeping and stress-induced insomnia. e. The Veteran's February 2017 DRO testimony. f. The Veteran's mother's February 2017 statement. g. The Veteran's February 2020 Board testimony. h. The Veteran's representative's argument of August 2021, and his citing of studies and articles supporting a correlation between mental health and OSA. The clinician is asked to opine as to the following: i. Whether the Veteran's OSA at least as likely as not (50 percent or greater probability) had its onset in service or related to any incident therein. ii. Whether the Veteran's OSA is at least as likely as not (50 percent or greater probability) caused by his service-connected bipolar disorder. iii. Whether the Veteran's OSA is at least as likely as not (50 percent or greater probability) aggravated by any service-connected bipolar disorder. iv. Whether the Veteran's service-connected bipolar disorder, to include medications taken for the disability, caused or aggravated obesity. v. Whether the Veteran's obesity is a substantial factor in causing his OSA. vi. If the answer to iv. and v. are affirmative, determine whether the Veteran's OSA would not have occurred, but for his obesity that was caused or aggravated by his bipolar disorder. The clinician is advised that separate opinions for both causation and aggravation prong are required. Atencio, 30 Vet. App. 74, 90 (2018). (Continued on the next page) The clinician must provide a complete rationale for his or her opinion(s) in the examination report. If any of the above-requested opinions cannot be made without resort to speculation, the clinician must state this and provide a rationale for such a conclusion. 2. Then, readjudicate the claim. If any decision is adverse to the Veteran, issue a supplemental statement of the case, and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Stevens, 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.