Citation Nr: 21062211 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 17-62 259 DATE: October 6, 2021 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran had active duty in the United States Air Force from June 1957 to February 1961, as well as subsequent periods of service in the United States Naval Reserve. The Veteran appeared at a hearing before the undersigned Veterans Law Judge in April 2018, a transcript of which is of record. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2017 decision of a Department of Veterans Affairs (VA) Regional Office (RO). It was previously before the Board in June 2018, April 2021, and July 2021, where it was remanded in each instance for additional development. Service Connection for OSA The Veteran has current diagnosis of sleep apnea, confirmed as obstructive sleep apnea (OSA) by an in-laboratory polysomnography conducted in June 2011, as well as apparent central sleep apnea (CSA), that he asserts is related to his military service or his service-connected PTSD. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. The RO denied the Veteran's claim in the June 2017 rating decision on appeal based on the determination that the Veteran's service treatment records (STRs) and post-service treatment records are negative for OSA until his diagnosis. Additionally, a VA examiner opined in June 2019 that the Veteran's sleep apnea was less likely than not related to service. The examiner explained that "[c]entral sleep apnea is a disorder in which breathing repeatedly stops and starts during sleep, and can be caused by conditions such as heart failure and stroke, sleeping at a high altitude, or some drugs. This patient has mild CSA, but does not have a history that would suggest a known cause of the condition. This being said, there is no reason to believe that his recently diagnosed CSA would have a relationship to his service of many decades ago." The Veteran has asserted, however, that his sleep apnea was caused or aggravated by his nonservice-connected PTSD. See 38 C.F.R. § 3.310. During his hearing testimony before the undersigned, he stated that he was told by a superior that he was expendable and that his base was a decoy to be hit by a missile. While service connection for PTSD was not in effect at the time of the Veteran's initial service connection claim for sleep apnea, service connection was granted following the Board's June 2018 remand in a January 2020 rating decision. Thereafter, in correspondence received in August 2020, the Veteran's attorney asserted that the Veteran's sleep apnea was caused or aggravated by his now service-connected PTSD. In support of this assertion, he submitted an article from the National Institute of Health (NIH) titled "The Correlation of Anxiety and Depression with Obstructive Sleep Apnea Syndrome." As the record was negative at the time for a medical opinion that addressed the above theory of entitlement, the Board remanded the claim in April 2021 for a VA examination, which was afforded later that month. After reviewing the pertinent medical history and performing an examination, the examiner opined that it is less likely than not that the Veteran's sleep apnea was caused or aggravated by his service-connected PTSD. In support of this conclusion, the examiner explained that the Veteran's attorney is correct that there is a correlation between certain mental health conditions, namely anxiety and depression, and the development of sleep apnea. The examiner goes on to note that correlation, however, is different than causation. The examiner also noted a lack of evidence in the medical literature suggesting anxiety (including PTSD) and depression cause sleep apnea. They conclude by noting the Veteran's sleep apnea is central (as also noted by the VA examiner in June 2019) rather than obstructive. For aggravation, the examiner found a lack of evidence in the medical literature establishing that sleep apnea can be aggravated by PTSD. In its most recent remand in July 2021, however, the Board found the above opinion to be inadequate. Specifically, while the examiner concluded that the Veteran's sleep apnea is central rather than obstructive, the medical record from May 2021 states the Veteran has a history of mild mixed obstructive and central sleep apnea. As the Board has noted above, the Veteran's 2011 sleep study specifically diagnosed obstructive sleep apnea. Thus, the Board remanded the claim for additional addendum opinions, which were provided in August 2021. The examiner was specifically instructed to address whether it is at least as likely as not that the Veteran's mixed obstructive and central sleep apnea was caused or aggravated by his service-connected PTSD as a result of his symptoms causing poor sleep, interrupting sleep, nightmares, interrupting the use of his CPAP machine, etc. The examiner was to consider the Veteran's medical records that encourage him to use his CPAP device during every sleep episode and for longer sleep periods in order to maximize the benefit of the CPAP therapy and to control the symptoms of his sleep apnea, that his PTSD symptoms include chronic sleep impairment, insomnia, or a difficulty falling or staying asleep and anxiety (see June 2019 Initial PTSD Disability Benefits Questionnaire), and that he has reported trouble falling or staying asleep. See April 2018 Board Hearing Transcript. Additionally, the examiner was also to consider the NIH article submitted by the Veteran's attorney in August 2020, as well as whether the Veteran's sleep-related symptoms associated with his service-connected PTSD worsen his sleep apnea symptoms or affect the efficacy of his CPAP machine in controlling his sleep apnea symptoms, as the Veteran reported interrupted and poor sleep due to nightmares in May 2021. Unfortunately, and while the Board sincerely regrets further delay, the Veteran's claim must once again be remanded for an additional medical opinion. In providing the opinion that it was less likely than not that the Veteran's sleep apnea was related to service on a direct service connection basis, the examiner noted that a sleep study performed in 2016 was actually negative for sleep apnea, and that only central sleep apnea was diagnosed in 2019. The Board notes, however, that the March 2016 VA sleep study the examiner references was an "at-home" sleep study, and the VA physician who conducted this sleep study specifically stated that "[i]f a strong clinical suspicion for sleep apnea exists, an in-laboratory polysomnogram can be considered." As the Board has noted above, obstructive sleep apnea was indeed diagnosed via an in-laboratory polysomnography in June 2011. Further, the examiner provided conflicting statements in their negative opinion as to secondary service connection. Although the examiner found it less likely than not that the Veteran's sleep apnea was caused by his PTSD, they also stated that "review of the medical literature reveals that there is causal link between PTSD and obstructive or central sleep apnea." While this may be a simple typographical error, given the clarification needed in the examiner's determination that obstructive sleep apnea has not been diagnosed, entirely new opinions are necessary. The matter is therefore REMANDED for the following actions: 1. Ask the Veteran to identify any outstanding treatment records relevant to his sleep apnea claim. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, the claims file should be sent to an examiner other than the examiner who provided the August 2021 opinions to offer opinions as to the following: a) Whether it is at least as likely as not (50 percent probability or greater) that any current sleep apnea disability, central or obstructive, had its onset during service or is otherwise related to an in-service injury, event, or disease. In offering the opinion, the examiner is asked to consider the Veteran's 1983 Report of Medical History that notes frequent trouble sleeping, as well as his June 2011 polysomnography diagnosing obstructive sleep apnea. b) Whether any current sleep apnea disability, central or obstructive, i) was caused (in whole or in part) or (ii) aggravated (a temporary worsening of a disability or any incremental increase in disability or any additional impairment of earning capacity regardless of its permanence) by his service-connected PTSD. In providing these secondary causation and aggravation opinions, the examiner should consider the Veteran's medical records encourage him to use his CPAP device during every sleep episode and for longer sleep periods in order to maximize the benefit of the CPAP therapy and to control the symptoms of his sleep apnea; that his PTSD symptoms include chronic sleep impairment, insomnia, or a difficulty falling or staying asleep and anxiety; and that he has reported trouble falling or staying asleep. The examiner should also consider whether the Veteran's sleep-related symptoms associated with his service-connected PTSD worsen his sleep apnea symptoms or affect the efficacy of his CPAP machine in controlling his sleep apnea symptoms. For example, in May 2021, the Veteran reported interrupted and poor sleep due to nightmares. The examiner should also consider the NIH article submitted by the Veteran's attorney in August 2020titled "The Correlation of Anxiety and Depression with Obstructive Sleep Apnea Syndrome." The need for an additional examination is left to the discretion of the examiner. A complete rationale for all opinions offered is requested as adjudicators are precluded from making any medical findings. The Board notes that this appeal has now been remanded four times. To avoid further delay, every effort should be made to fully respond to the Board's remand directives. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Scarduzio, 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.