Citation Nr: 21062550 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 06-32 183 DATE: October 7, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to a service-connected disability, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1964 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) from October 2013 and October 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in August 2017. A transcript of the hearing is of record. The issue was previously before the Board in May 2018, July 2020, and April 2021, where it was remanded each time for additional development. While the Board regrets further delay, the Veteran's claim must once again be remanded. The Board notes that this appeal is now being remanded for a VA examiner's opinion for the fourth time. All efforts must be made to ensure that the Board's below directives are completed to the extent possible. A copy of this REMAND, including the below background, should be provided to the examiner. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. By way of background, the Veteran reported in an April 2012 statement that he used food to cope with his stress and anxiety, which led to problems with sleep apnea. In his December 2013 Notice of Disagreement, the Veteran asserted that the psychotropic medications he was prescribed for his PTSD caused weight gain which caused sleep apnea. The Board notes that, while obesity cannot be service-connected on a direct basis, and obesity cannot qualify as an in-service event for service connection purposes, obesity may indeed serve 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). VAOGCPREC 1-2017. In such a case, the evidence would need to reflect that (1) a service-connected disability or disabilities caused the Veteran to become obese, (2) the obesity was a substantial factor is causing another disability, and (3) the disability would not have occurred but for the obesity caused by the Veteran's service-connected disability or disabilities. Id. As the Board noted in its first remand in May 2018, the Veteran supplemented the record with many medical articles regarding the relationship between PTSD and sleep apnea. During his August 2017 Board hearing, the Veteran noted the studies he submitted that showed that sleep apnea was secondary to PTSD and asserted that his anxiety and depression caused problems sleeping. In private treatment records dated in February 1999, related to a worker's compensation claim for PTSD, the examiner noted the Veteran's prior motor vehicle accident and reported that the Veteran had sleep apnea, a non-industrial disorder, possibly a side effect from his medication used to treat the PTSD he incurred in 1993 at the time of the accident. The Veteran submitted a copy of a November 2009 traumatic brain injury (TBI) DBQ on which he handwrote that his loss of energy/anergia, changes in sleeping patterns/sleep disturbance, and tiredness/fatigue, noted in the examination report reserved for psychometric testing results and depressive symptoms, were related to, or represented, sleep apnea. He also wrote that the medication used to treat his PTSD helped him sleep. In a September 2015 Disability Benefits Questionnaire (DBQ), the Veteran's private physician diagnosed the Veteran with OSA and reported that PTSD and major depression were additional diagnoses that pertained to sleep apnea. The physician, however, did not offer an opinion as to whether the Veteran's sleep apnea was proximately caused or aggravated by his service-connected PTSD on a secondary basis. As such, the Board remanded the matter in May 2018 for the Agency of Original Jurisdiction (AOJ) to afford the Veteran an examination to determine the etiology of his OSA. The examiner was asked to opine as to whether it was at least as likely as not that the Veteran's OSA was proximately due to the Veteran's PTSD or aggravated beyond its natural progression by his PTSD, considering any psychotropic medication required to treat such, and side effects thereof, including weight gain. In a June 2019 DBQ, the examiner noted the Veteran's diagnosis of diabetes mellitus in 2002, and that his initial weight was 273 pounds, though he reduced such to 203 pounds, and that his current body mass index (BMI) was 32. The examiner noted the Veteran's severe motor vehicle accident in 1994, with no other injuries to the head and neck reported, as well as his long history of nasal allergies with oral allergy and prescription nasal spray medication use as well as treatment for yearly sinus infections. The Veteran reported that after he moved to Oregon, in 1997, his wife noticed that his snoring was increased, and he would stop breathing during sleep. The examiner reported that OSA is an anatomic problem of the oropharynx, treated by continuous positive airway pressure (CPAP) to enlarge the airway, and the anatomic obstructive sleep apnea problem is thus not caused or increased by PTSD or stress. In an April 2020 addendum, the examiner discussed that the Veteran was currently being treated with medications for anxiety and mood. He reported that weight gain and increased obstructive sleep apnea would not usually be associated with any of the medications listed after review of the relevant drug references, and that weight loss would be a more likely side effect. He noted that the Veteran already weighed 273 at the time of his diagnosis of diabetes mellitus and reduced such to 203 with a current BMI of 32, a considerable improvement, however, he continued to need CPAP at his current weight. He concluded that, based on such, it was less likely than not that the Veteran's obstructive sleep apnea is aggravated beyond its natural progression by his PTSD, considering any psychotropic medication required to treat such, and side effects thereof, including weight gain. The Board determined in its July 2020 remand, however, that the June 2019 and April 2020 VA opinions were incomplete and remanded the matter again. While the examiner responded to the Veteran's assertion that his psychiatric medications caused weight gain which caused his obstructive sleep apnea, he did not address his assertion that he used food to cope with his psychiatric symptoms which caused his weight gain which caused his sleep apnea. Additionally, the examiner did not comment on the many medical articles submitted by the Veteran regarding the relationship between PTSD and sleep apnea; the February 1999 comment of a private examiner that he had sleep apnea, a non-industrial disorder, possibly a side effect from his psychiatric medication used to treat his PTSD; the results of his November 2009 TBI DBQ on which he handwrote that his loss of energy/anergia, changes in sleeping patterns/sleep disturbance, and tiredness/fatigue, noted in the examination report reserved for psychometric testing results and depressive symptoms, were related to or represented sleep apnea, and that the medication used to treat his PTSD helped him sleep; and the comment of a private examiner in the September 2015 sleep apnea DBQ that PTSD and major depression were additional diagnoses that pertained to sleep apnea. An additional addendum opinion was provided in February 2021. In April 2021, the Board again found the opinion deficient for several reasons. Firstly, the February 2021 examiner did not comply with the July 2020 remand directive to discuss the Veteran's assertion that he used food to cope with the psychiatric symptoms of PTSD, which caused weight gain and thereby caused his OSA. Furthermore, similar to the April 2020 addendum opinion which the Board found inadequate, the examiner again based his negative opinion on the fact that the Veteran's OSA and its treatment "continued to be present when his weight went down from 273 to 203." However, a "permanent worsening" of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening, or flare-ups, of a disability). See Ward v. Wilkie, 31 Vet. App. 233, 241-42 (2019). Further, as noted by the examiner in the April 2020 opinion, the Veteran's current BMI is 32, which is still considered obese. Therefore, it is irrelevant if the Veteran has lost some weight over the course of the appeal. The issue is whether his obesity is an intermediate step between his PTSD and OSA. Finally, in correspondence received in March 2021 the Veteran asserted that his service-connected diabetes mellitus is a known catalyst for weight gain resulting in OSA. As such, the matter was remanded for yet another addendum opinion, which was obtained in July 2021. Unfortunately, the examiner's opinion continues to be incomplete. Notably, as to the Veteran's theory that his diabetes resulted in weight gain, thereby causing or aggravating his OSA, the opinion only states that the Veteran's obesity was an aggravating factor for his diabetes. This opinion does not address his actual argument that diabetes itself is a known catalyst for weight gain. As to the effect of Veteran's PTSD in causing or aggravating OSA, the examiner again only addressed the effects of PTSD medication. As with previous opinions, the examiner did not address: 1) the assertions that the Veteran used food to cope with his psychiatric symptoms which caused his weight gain which caused his sleep apnea; 2) the many medical articles submitted by the Veteran regarding the relationship between PTSD and sleep apnea; 3) the February 1999 comment of a private examiner that he had sleep apnea, a non-industrial disorder, possibly a side effect from his psychiatric medication used to treat his PTSD; 4) the results of his November 2009 TBI DBQ on which he handwrote that his loss of energy/anergia, changes in sleeping patterns/sleep disturbance, and tiredness/fatigue, noted in the examination report reserved for psychometric testing results and depressive symptoms, were related to or represented sleep apnea, and that the medication used to treat his PTSD helped him sleep; and 5) the comment of a private examiner in the September 2015 sleep apnea DBQ that PTSD and major depression were additional diagnoses that pertained to sleep apnea. A such, additional opinions are unfortunately necessary. The matter is therefore REMANDED for the following actions: 1. Ask the Veteran to identify any outstanding treatment records relevant to his OSA 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 their unavailability. 2. Obtain a medical opinion from an appropriate examiner, preferably an examiner other than the examiner that provided the previous opinions, concerning whether the Veteran's sleep apnea is secondary to his service-connected PTSD. If the examiner determines that additional physical examination of the Veteran is necessary, one should be provided. The examiner should opine whether it is at least as likely as not (50% or greater probability) that (i) the Veteran's service-connected PTSD caused or aggravated is obesity; (ii) such obesity was a substantial factor in causing his sleep apnea; and (iii) the current sleep apnea would not have occurred but for obesity caused or aggravated by the service-connected PTSD. In providing this opinion, the examiner must consider the following: (a) The Veteran's assertion that he used food to cope with his psychiatric symptoms of PTSD, which caused weight gain, which caused his obstructive sleep apnea (that obesity is an intermediate step between PTSD and obstructive sleep apnea). (b) The many medical articles regarding the relationship between PTSD and sleep apnea submitted by the Veteran. (c) The February 1999 comment of a private examiner that the Veteran had sleep apnea, a non-industrial disorder, possibly a side effect from his psychiatric medication used to treat his PTSD. (d) The results of the Veteran's November 2009 TBI DBQ on which he handwrote that his loss of energy/anergia, changes in sleeping patterns/sleep disturbance, and tiredness/fatigue, noted in the examination report reserved for psychometric testing results and depressive symptoms, were related to sleep apnea and that the medication used to treat his PTSD helped him sleep. (e) The comment of a private examiner in the September 2015 sleep apnea DBQ that PTSD and major depression were additional diagnoses that pertained to sleep apnea. In providing the opinion(s)concerning aggravation, the examiner is advised that a "permanent worsening" of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening, or flare-ups, of a disability). Therefore, even though the Veteran lost some weight over the course of the appeal, aggravation is still a possibility. Further, as noted by the April 2020 opinion, the Veteran's current body mass index (BMI) is 32, which is still considered obese. A complete rationale for all opinions and a discussion of the facts and medical principles involved should be provided as the Board is precluded from making medical determinations. 2. Obtain a medical opinion from an appropriate examiner, preferably an examiner other than the examiner that provided the previous opinions, concerning whether the Veteran's sleep apnea is secondary to his service-connected diabetes mellitus. If the examiner determines that additional physical examination of the Veteran is necessary, one should be provided. The examiner should opine whether it is at least as likely as not (50% or greater probability) that (i) the Veteran's service-connected diabetes mellitus caused or aggravated his obesity; (ii) such obesity was a substantial factor in causing his sleep apnea; and (iii) the current sleep apnea would not have occurred but for obesity caused or aggravated by the service-connected diabetes mellitus. The examiner is directed to specifically comment on the Veteran's assertion that diabetes is known to be a catalyst for weight gain resulting in obstructive sleep apnea. See March 2021 Statement in Support of Claim. In providing the opinion concerning aggravation, the examiner is advised that a "permanent worsening" of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening, or flare-ups, of a disability). A complete rationale for all opinions and a discussion of the facts and medical principles involved should be provided as the Board is precluded from making medical determinations. 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.