Citation Nr: 21067975 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 17-43 127 DATE: November 8, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for a prostate condition, to include as due to herbicide exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1964 to December 1964 and from January 1965 to January 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2020, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding has been associated with the record. These matters were previously before the Board in July 2020, December 2020, and July 2021, for additional evidentiary development, which has not been substantially completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2020). 38 U.S.C. § 7107(a)(2) (2012). 1. Entitlement to service connection for OSA, to include as secondary to service-connected PTSD, is remanded. The Veteran is seeking service connection for OSA. Specifically, he contends that his current diagnosis of OSA is secondary to stress caused by his service-connected PTSD. The Veteran also asserts that his OSA has worsened due to his PTSD because he wakes up several times at night due to his PTSD and this interrupts his OSA treatment. See September 2020 Correspondence. As noted above, this matter was remanded most recently in July 2021. In accordance with the July 2021 remand, an addendum VA medical opinion was obtained in August 2021. In relevant part, the examiner opined that the Veteran's OSA less likely than not had its onset in or is otherwise etiologically related to active-duty service since he was not diagnosed with OSA until July 2015 and his January 1970 separation examination clearly marks "No" for frequent trouble sleeping and "No" for frequent or terrifying nightmares. Regarding secondary service connection, the examiner opined that it was less likely than not that the Veteran's OSA was related to his PTSD. He explained that since OSA is a physical and anatomical obstruction of the airway restricting air flow, it is caused by conditions that physically obstruct or alert anatomy to narrow the Veteran's airway. There was no confirmed causal relationship between PTSD and OSA, although, there have been some studies that suggest a possible increase in risk of OSA for individuals that are diagnosed with PTSD. The examiner asserted that a from Journal of Clinical Sleep Medicine dated May 15, 2015: "Obstructive Sleep Apnea and Posttraumatic Stress Disorder among OEF/OIF/OND Veterans," was a completely flawed study which should not even be considered as medical evidence. He also explained that the medications Prazosin and Sertraline prescribed to treat the Veteran's PTSD are not known to worsen OSA and some small studies suggests that they help with sleep and potentially improve OSA. Here, the VA examiner did not properly address the aggravation prong of secondary service connection. Specifically, the examiner does not address whether the Veteran's mental health condition at least as likely as not aggravated his OSA, to include because his PTSD causes him to wake several times during the night and this interferes with his OSA treatment, i.e., worsens his condition. Accordingly, another remand is warranted for a new VA opinion that applies the correct standard and meaningfully takes into account the Veteran's statements. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 2. Entitlement to service connection for prostate condition, to include as due to herbicide exposure, is remanded. The Veteran is seeking entitlement to service connection for prostate conditions, to include hypertrophy of prostate, nodular prostate, and benign prostatic hyperplasia. Specifically, the Veteran contends that his prostate conditions are secondary to herbicide exposure. As noted above, this issue was most recently remanded in July 2021. In the July 2021 decision, the Board noted that service connection may be established on a direct service connection basis, see Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Accordingly, the Board found that a remand was warranted in order to obtain an adequate VA medical opinion that addressed whether the Veteran's prostate conditions of hypertrophy of prostate, nodular prostate, and benign prostatic hyperplasia are related to service, to include conceded herbicide exposure on a non-presumptive basis. In accordance with the July 2021 remand, an addendum VA medical opinion was obtained in August 2021. The examiner opined that the Veteran's benign prostatic hyperplasia was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service exposure to herbicide as supported by a medical literature article. He clarified that the Veteran's previous diagnosis of nodular Prostate can be used interchangeably with benign prostatic hyperplasia since the Nodule was confirmed to be non-cancerous. The nodular prostate was a physical finding of the pathophysiological condition of benign prostatic hyperplasia as confirmed by the results of the Veteran's biopsy dated February 2021. Another term that could have been used would be Nodular prostatic hyperplasia, but benign prostatic hyperplasia is a more widely used term that species the condition as non-cancerous. Here, the examiner provides a circular rationale for his conclusory statement regarding whether the Veteran's disability is related to herbicide exposure. The examiner also fails to provide, as requested, a medical opinion regarding direct service connection. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As such, a remand is warranted for a new opinion. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's obstructive sleep apnea. The claims file and a copy of this remand must be made available to the examiner and the examiner should note in the examination report that the claims folder and the remand have been reviewed. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. The examiner should respond to the following: (a.) Is it as least as likely as not (50 percent probability or greater) that the Veteran's obstructive sleep apnea had its onset in or is otherwise etiologically related to active-duty service? Please explain why or why not. In doing so, the examiner should address the Veteran's and Veteran's wife's competent buddy statements. (b.) Is it as least as likely as not (50 percent probability or greater) that the Veteran's obstructive sleep apnea is (i) caused by his service-connected PTSD? Please explain why or why not. (ii) aggravated by his service-connected PTSD? Please explain why or why not. In rendering the requested opinions, the examiner should address statements from the Veteran and his wife asserting that chronic sleep disturbances associated with his service-connected PTSD aggravates his sleep apnea and interferes with CPAP treatment. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 2. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's prostate conditions of hypertrophy of prostate, nodular prostate, and benign prostatic hyperplasia. The claims file and a copy of this remand must be made available to the examiner and the examiner should note in the examination report that the claims folder and the remand have been reviewed. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. The examiner should provide the following opinions: (a.) Whether it is as least as likely as not (50 percent probability or greater) that the Veteran's prostate disability is related to an in-service injury, event, or disease. (b.) Whether it is as least as likely as not (50 percent probability or greater) that the Veteran's prostate disability is related exposure to herbicides during service on a non-presumptive basis. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). (Continued on the next page) 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case (SSOC) and return the case to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Kaufer, 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.