Citation Nr: 21063459 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 17-49 163 DATE: October 14, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from January 2003 to September 2003 and from August 2004 to October 2005 including service in Southwest Asia. This appeal comes before the Board of Veterans' Appeals (Board) from a November 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied service connection for sleep apnea. The Veteran's notice of disagreement (NOD) was received in December 2014. The RO issued the statement of the case (SOC) in July 2017, and the Veteran's VA Form 9, substantive appeal was received in September 2017. In November 2019 the Board remanded the case to the RO for further development and adjudicative action. Entitlement to service connection for obstructive sleep apnea (OSA), to include secondary to the service-connected posttraumatic stress disorder (PTSD), is remanded. The Veteran contends that OSA had its onset in service, and/or was caused by his exposure to burn pits in Iraq. Alternatively, the Veteran contends that OSA is secondary to his service-connected PTSD. The Veteran was diagnosed with severe obstructive sleep apnea by a private sleep study in July 2011. See July 2011 private sleep study. In August 2013, the Veteran's wife noted that he had pronounced snoring and apneas when he was home on leave in April 2005. She stated that Veteran has had apneas since his Iraq deployment. In June 2017, the Veteran underwent a VA examination for sleep apnea. The VA examiner opined that the Veteran's OSA is less likely than not a result of his burn pit exposure during his deployment to Iraq. The examiner noted that the Veteran's exposure to burn pits during his deployment was not disputed; however, he did not find any medical evidence to support a causal relationship of exposure to burn pits and OSA. The examiner opined that the etiology of current OSA is more likely than not related to the post-service weight gain that had progressed, especially since the Veteran was diagnosed with OSA 11-years after his discharge. However, the June 2017 VA opinion is based on two inaccurate factual premises. The opinion misstates the years the Veteran was deployed to Iraq and incorrectly states that the Veteran was diagnosed with OSA 11 years after separation when the actual time gap was 6 years. In December 2019, VA obtained an addendum medical opinion in this case. The examiner found that the Veteran's OSA was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner provided a detailed and well-supported rationale for finding that the Veteran's OSA was less likely than not related to exposure to burn pits. Regarding whether the Veteran's OSA began during service, the examiner acknowledged the lay statement of the Veteran and his spouse that he experienced snoring and apneas during active service but stated that snoring in an individual does not mean that they have sleep apnea. The examiner explained that the medical diagnosis of sleep apnea requires a polysomnogram or sleep study which demonstrates objective signs that define obstructive sleep disorders. The examiner stated that it is possible that the Veteran experienced snoring and apneas during service but did not have OSA. The examiner stated that, without a sleep study, it is not possible to state with at least a 50 percent medical probability that the Veteran had sleep apnea either during his 2005 Iraq deployment or following his return. The examiner stated that, "[w]hat we do know is that he was diagnosed with obstructive sleep apnea, by a sleep study, in July 2011." The examiner stated that it is not possible to attribute a 50 percent or greater probability that the Veteran had obstructive sleep apnea until the date of his sleep study. In August 2021, the Veteran's representative submitted an Appellate Brief contending that the Veteran is entitled to service connection for OSA as secondary to his service-connected PTSD. The Veteran's representative noted that the November 2014 VA examination report indicates that the Veteran experiences nightmares due to in-service stressors and has difficulty sleeping due to psychiatric symptoms. However, no medical opinion of record addresses whether the Veteran's OSA is proximately due to or aggravated by the Veteran's PTSD. Further, the RO did not address the Veteran's new theory of entitlement in the latest Supplemental Statement of the Case. In this case, the Veteran's theory of entitlement has not yet been addressed by a VA examiner. In order to fairly adjudicate the Veteran's claim, a VA medical opinion is required to determine whether the Veteran's OSA is related to his service-connected PTSD. When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Accordingly, this matter is remanded for further development and adjudication. Specifically, the RO should obtain an addendum VA medical opinion addressing entitlement to service connection for OSA both on a direct basis and as secondary to the service-connected PTSD. The matters are REMANDED for the following action: 1. Obtain a VA medical opinion addressing the nature and etiology of the Veteran's OSA. The Veteran's file, including a copy of this remand, must be made available to the examiner, and the opinion should reflect that the claims file was reviewed in conjunction with providing the medical opinion. The VA examiner is requested to opine as to the following: a. Whether it is at least as likely as not that the Veteran's OSA is proximately due to his service-connected PTSD? c. Whether the Veteran's OSA is at least as likely as not aggravated (made worse/increased in severity) due to the Veteran's service-connected PTSD? Aggravation of a nonservice-connected disability is defined as any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progression of the nonservice-connected disease. If aggravation is found, the examiner should attempt to quantify the baseline severity prior to any aggravation. If the examiner rejects any lay evidence as to onset and continuity of symptomatology, he or she must provide a reason for doing so. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what additional evidence, if any, would be necessary before an opinion can be rendered. (Continued on the next page) In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Modesto, Victor 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.