Citation Nr: A21017252 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 210920-186208 DATE: October 26, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for veterans dissatisfied with VA's decision on their claim to seek review. The Veteran served on active duty in the United States Army from February 1968 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2021 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2021, the Veteran submitted his Decision Review Request (Board Appeal), selecting direct review by a Veterans Law Judge. Under the AMA framework, when there are pre-decisional duty-to-assist errors, it is permissible for the Board to have them corrected before deciding the claims on appeal. The Veteran's appeal as to the issue of service connection for sleep apnea is remanded to correct duty-to-assist errors that occurred prior to the September 2021 rating decision on appeal. Entitlement to service connection for sleep apnea is remanded. In July 2021, the Veteran filed a VA Form 20-0996 to request higher-level review of a July 2021 rating decision determination that denied the Veteran's claim for entitlement to service connection for sleep apnea secondary to service-connected PTSD. A September 2021 rating decision denied the claim. The Veteran contends that his sleep apnea has been aggravated by his service- connected PTSD. The Veteran was previously provided a VA medical opinion in May 2016. The examiner concluded that the Veteran's sleep apnea was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected PTSD. As rationale, the examiner explained that there is no medical evidence that the Veteran's obstructive sleep apnea was caused by or permanently aggravated by his PTSD. These are separate and distinct conditions, and one is not known to cause the other. The examiner explained that obstructive sleep apnea is due to a physical abnormality of the posterior pharynx. According to the examiner, the most likely etiology of the Veteran's sleep apnea is his obesity as well as risk factors of age and gender. The Veteran was provided another VA medical opinion in January 2021. The examiner concluded that the Veteran's sleep apnea was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected PTSD. The Veteran was provided another VA medical opinion in July 2021. The examiner concluded that the Veteran's sleep apnea was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected PTSD. The examiner provided the following rationale: According to the Veteran's 2016 sleep study, he was diagnosed with obstructive sleep apnea. In 2017, it is noted that the Veteran had a stroke. In 2020, the Veteran had another sleep study done diagnosing him with both obstructive and central sleep apnea. At the time of his 2020 sleep study the Veteran had a BMI of 31.97, which is considered obese. According to medical literature (NIH), "sleep apnea is most often caused by a person's physical structure, such as: overweight/obesity, large neck circumference, and large tonsils. The Veteran's cause for being overweight is most likely a result of lifestyle habits, environmental factors, and/or genetics. Excess weight gain and a larger neck circumference can be reversible with lifestyle and environmental changes. Given the above data, the Veteran's obstructive sleep apnea condition is at least as likely as not (50% or greater probability) caused by excess weight gain and a larger neck circumference and NOT secondary to PTSD. The Veteran's central sleep apnea is at least as likely as not (50% or greater probability) related to his 2017 stroke incident causing a disruption in brain signals and NOT secondary to PTSD. According to medical literature (NIH), "conditions interfering with brain signals to airway and chest muscles (such as a stroke) can cause sleep apnea." A secondary nexus has not been established. As described above, the May 2016 examiner explained that there is no medical evidence that the Veteran's obstructive sleep apnea was caused by or "permanently aggravated" by his PTSD. The Board finds that the secondary service connection opinion provided by the May 2016 examiner is inadequate in light of the holding by the United States Court of Appeals for Veterans Claims in Ward v. Wilkie, 31 Vet. App. 233 (2019), which held that aggravation under 38 C.F.R. § 3.310(b) does not require that there be "permanent" worsening of the nonservice connected disability. Any increase in disability is sufficient to show aggravation. The Board also finds the January 2021 and July 2021 opinions to be inadequate as the examiners did not provide an opinion on whether it was at least as likely as not that the Veteran's sleep apnea was aggravated by his service-connected PTSD. In May 2021, the Veteran submitted a private medical opinion in which the examining physician opined that the Veteran's sleep apnea was made worse by his PTSD. The Board acknowledges that the Veteran submitted a favorable private medical opinion from his treating physician in May 2021. The physician opined that "[a]s the sleep physician for [the Veteran] for diagnosis of Obstructive Sleep Apnea, it is far more likely than not that this diagnosis was made worse through being linked to his Post Traumatic Stress Disorder diagnosis while serving in the United States Army." In support of her opinion, the physician referenced a journal article: "Obstructive Sleep Apnea and Posttraumatic Stress Disorder among OER/OIF/OND Veterans," published in the May 2015 issue of the Journal of Clinical Sleep Medicine. According to the physician, a study referenced in the journal article found that "every clinically significant increase in PTSD symptoms severity was associated with a 40% increase in being at high risk for sleep apnea." The Board finds that the journal article submitted in support of the Veteran's claim is not probative in this determination. The article is very general in nature and does not include consideration of facts specific to the Veteran's circumstances. Moreover, the physician failed to provide any specific evidence describing how the Veteran's sleep apnea has been aggravated by his PTSD. Therefore, the Board affords no probative value to the May 2021 private medical opinion. Due to the deficiencies of the May 2016, January 2021, and July 2021 VA medical opinions described above, remand is warranted to obtain an addendum opinion to address whether the Veteran's service-connected PTSD aggravated the Veteran's obstructive sleep apnea. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). By this remand, the Board makes no determination, express or implied, concerning the credibility of any lay statements on file. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion from the examiner who provided the July 2021 VA opinion, if available, or another qualified medical professional. The examiner must review the entire claims file, to include this remand. 2. After reviewing the relevant evidence, the examiner should provide an opinion for the following: Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's sleep apnea was aggravated (any increase in disability beyond the natural progression) by his service-connected PTSD? The examiner must provide a detailed rationale for any opinion expressed. 3. If aggravation is found, the examiner is asked to state the baseline level of severity of sleep apnea before the onset of aggravation, to discuss the earliest medical evidence establishing the current level of severity, and to discuss what level of increase in severity from the baseline was due to the natural progression of the sleep apnea and what level of increase was due to aggravation from his service-connected PTSD. 4. After the development described above, and any additionally indicated development, has been completed, readjudicate the issue on appeal. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Moore, 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.