Citation Nr: 21068525 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 16-33 834 DATE: November 10, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea, to include as secondary to the service-connected posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for prostate cancer is remanded. Entitlement to an effective date earlier than October 7, 2014, for the combined service-connected disability rating of 60 percent is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from February 1986 to September 1987 and from December 1990 to April 1991, to include service in the Reserves. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. In January 2021, the Board last remanded these matters to the RO for further development. As an initial matter, the Board notes that in an August 2021 rating decision, the Agency of Original Jurisdiction (AOJ) granted served connection for PTSD. As this is considered a full grant of the issue of service connection sought on appeal, the issue is not before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). 1. Entitlement to service connection for obstructive sleep apnea, to include as secondary to the service-connected PTSD Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. In this regard, the Board cannot make a fully informed decision on the Veteran's claim because the last VA opinion of record, in April 2021, is again inadequate. Specifically, the April 2021 VA clinician found that that the Veteran's obstructive sleep apnea is less likely than not related to service, to include in-service complaints. The VA clinician explained that often an individual with sleep apnea is clinically unaware of his or her sleep disturbance, and that the symptoms of loud snoring, restless awakening, or apneic spells are only noted by the patient's bed partner or other family members. However, the clinician did not address the statement from the Veteran's fellow serviceman and roommate attesting to witnessing the Veteran experience symptoms of sleep apnea (snoring, choking, and gasping for air while trying to sleep) during service as requested to do so in the January 2021 Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Additionally, the VA clinician generally discussed the causes/signs and symptoms of obstructive sleep apnea without connecting such to the specific facts and circumstances of the Veteran's case. The Board notes that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). As such, a remand is warranted for an addendum opinion that includes adequate rationale and addresses the pertinent lay statements of record. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Additionally, the Boards finds that on remand, a VA medical professional should also provide an addendum secondary service connection opinion because the April 2021 VA secondary service connection opinion is inadequate. In this regard, the April 2021 VA clinician provided no rationale for his conclusion that PTSD may worsen insomnia but not obstructive sleep apnea. Moreover, it is unclear if the clinician's opinion is based on an accurate factual premise as he noted that the records show the Veteran was diagnosed with PTSD in April 2014, but it was the opinion of the examiner that the PTSD was not due to the Veteran's time in service. However, the Veteran's PTSD has been found to be related to his service. Accordingly, a remand is also warranted for an addendum secondary service connection opinion. Finally, as the October 2014 VA Gulf War examiner noted that common contributing factors to obstructive sleep apnea include obesity/being overweight and that the Veteran has a body mass index (BMI) putting him in the obese range, on remand, a VA examiner should address whether the Veteran's service-connected disabilities resulted in the development of obesity as an intermediary step in the manifestation of his obstructive sleep apnea. In this regard, the Board notes that although obesity is not a disease for service connection purposes, it nonetheless may be an intermittent step between a service-connected disability and a current disability that may be service connected on a secondary basis. VAOPGCPREC 1-2017 (Jan 6, 2017). As such, a remand is also warranted for a VA medical opinion to address this issue. 2. Entitlement to service connection for prostate cancer The Veteran's representative asserts that the last VA opinion of record, in April 2021, is inadequate to decide the Veteran's claim. See September 2021 Appellate Brief. Specifically, she argues that the April 2021 VA clinician based his negative nexus opinion on an incorrect assumption about the Veteran's family cancer history because the VA clinician indicated the Veteran was likely predisposed to prostate cancer by way of genetics but did not consider that the Veteran's father is a Vietnam Veteran whose cancer is presumed by VA to be related to in-service Agent Orange exposure. See id. Additionally, she argues that the April 2021 VA opinion does not indicate it would be impossible for perfluoroalkyl and polyfluoroalkyl substances (PFAS) exposure to have led to the Veteran's prostate cancer but rather indicates that existing studies do not conclude this with medical certainty, which is not the threshold requirement for service connection. In light of the above and given that the April 2021 VA examiner appears to base his negative nexus opinion, in part, on his finding that the Veteran's prostate cancer is due to genetics/family cancer history without consideration of the fact that the Veteran's father's prostate cancer may be due to chemical/environmental exposures, the Board finds that a remand is again warranted for an addendum opinion that considers this specific medical history. The Board reiterates that the applicable evidentiary standard for service connection is at least as likely as not, meaning a probability of 50 percent or greater. The standard does not require proof demonstrating causation with absolute certainty. Thus, on remand, an opinion that applies a heightened standard of proof will render the opinion inadequate. 3. Entitlement to an effective date earlier than October 7, 2014, for the combined service-connected disability rating of 60 percent As the claims for service connection on appeal were received by VA in June 2012, it is possible that a grant of service connection for any of the above remanded claims could be made effective prior to October 7, 2014. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (finding that where a decision on one issue would have a "significant impact" upon another, and that impact, in turn, could render any review of the decision on the other claim meaningless and a waste of appellate resources, the two claims are inextricably intertwined). Thus, appellate review of this matter must be deferred pending action on the remanded claims The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. The last VA treatment of record is dated August 2021. 2. Then, obtain an addendum opinion from an appropriate medical professional to address the claim for service connection for sleep apnea. The claims file, including a copy of this Remand, should be made available to, and be thoroughly reviewed by, the examiner. The examiner is asked to respond to the following: (a) Is it at least as likely as not (50 percent probability or greater) that the Veteran's diagnosed obstructive sleep apnea (1) had an onset in service OR (2) is otherwise related to service? In providing the above opinion, the VA examiner MUST ADDRESS (1) the statement submitted by the Veteran's fellow serviceman and roommate attesting to witnessing the Veteran experience symptoms of sleep apnea (snoring, choking, and gasping for air while trying to sleep) during service, see May 2019 Statement in Support of Claim, AND (2) the Veteran's report that his sleep apnea symptoms had an onset around 1987 (reports episodes of witnessed snoring and apneic events with daytime drowsiness and difficulty sleeping) and that he was unaware that his symptoms were symptoms of sleep apnea until he underwent a sleep study in 2014. (b) Is it at least as likely as not (50 percent probability or greater) that the Veteran's diagnosed obstructive sleep apnea (1) is caused by OR (2) aggravated by the Veteran's service-connected PTSD? In rendering his or her opinion, the examiner should address BOTH the causation and aggravation questions in his or her rationale. If aggravation is found, the examiner should quantify the degree of aggravation, if possible and state whether there was a medically ascertainable increase in disability regardless of permanence. In providing the above opinion, the VA examiner should consider the Journal of Clinical Sleep Medicine article submitted by the Veteran in May 2019 Correspondence discussing a relationship between OSA and PTSD. (c) If the examiner finds that the Veteran's diagnosed obstructive sleep apnea is not related to service or his service-connected PTSD, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's service-connected disabilities caused OR aggravated the Veteran's obesity/being overweight? (d) If so, (1) is the Veteran's obesity a substantial factor in causing or aggravating his obstructive sleep apnea; and (2) would the Veteran's obstructive sleep apnea not have occurred or worsened but for the obesity caused by his service-connected disabilities or medications taken for same? The examiner should comment on all questions above and set forth a complete rationale for all opinions. A detailed discussion of the relevant facts and medical principles involved, including citations to supporting clinical data/medical literature, would be of considerable assistance to the Board. If the examiner cannot provide a requested opinion without resorting to mere speculation, it must be stated, and the examiner must provide the reasons why an opinion would require speculation 3. Obtain an addendum opinion from an appropriate medical professional to address the claim for service connection for prostate cancer, to include as due to in-service exposure to toxins as a firefighter. The claims file, including a copy of this Remand, should be made available to, and be thoroughly reviewed by, the examiner. The examiner is asked to respond to the following: (a) Is it at least as likely as not (50 percent probability or greater) that the Veteran's prostate cancer (1) had an onset in service, (2) was caused by service, OR (3) is otherwise related to service, to include as due to exposure to toxins/diesel fuel as a firefighter therein? (b) If the VA medical professional finds that the Veteran's prostate cancer is more likely than not related to risk factors including a family history of prostate cancer/genetics, he or she must address and discuss the Veteran's assertions that his father's prostate cancer is presumed related to Agent Orange (herbicide agents exposure) exposure and, thus, his family cancer history has no bearing/is not a risk factor for his current condition as his father's prostate cancer may be due to chemical/environmental exposures. In providing the above opinion the VA examiner should ADDRESS the studies submitted by the Veteran in support of his claim and should DISCUSS how they relate to his claim, to include (1) the article entitled Mortality and cancer incidence in a pooled cohort of US firefighters from San Francisco, Chicago, and Philadelphia (1950-2009) (which notes, in relation to firefighting, that a recent meta-analysis of 32 studies reported significant excess risk for prostate cancer and that the International Agency for Research on Cancer (IARC) reviewed 42 studies and reported significant summary risks for prostatic and testicular cancers but concluded that given limited evidence firefighter exposures were only possibly carcinogenic to humans); (2) the review article entitled A critical review of perfluorooctanoate and perfluorooctanesulfonate exposure and cancer risk in humans (noting that existing epidemiologic evidence does not support the hypothesis of a causal association between PFOA or PFOS exposure and cancer in humans but that further research on this topic is warranted); and (3) the online article entitled World Health Organization Says Diesel Exhaust Causes Cancer (noting the World Health Organization classified diesel engine exhaust as a carcinogen and that there is sufficient evidence that exposure causes lung cancer and limited evidence that it increases risk of bladder cancer). The VA examiner should also consider the Veteran's Board testimony that he was exposed to firefighting foam weekly during service, including Aqueous Film-Forming Foam (AFFF), which is commonly used to fight fires in jet fuels, and that he was diagnosed with prostate cancer at age 41, which is an early age for this diagnosis. See April 2019 Board hearing transcript, pp 6-8. A clearly stated rationale for any opinion offered should be provided. In this regard, a detailed discussion of the relevant facts and medical principles involved would be of considerable assistance to the Board. If the examiner cannot provide a requested opinion without resorting to mere speculation, it must be stated, and the examiner must provide the reasons why an opinion would require speculation. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Amanda Purcell, 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.