Citation Nr: 21070764 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 16-20 250 DATE: November 26, 2021 REMANDED Service connection for obstructive sleep apnea is remanded. Service connection for left ear hearing loss is remanded. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from November 2002 to December 2007. His decorations include the Afghanistan Campaign Medal and Iraq Campaign Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2014 and October 2018 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). These matters were remanded by the Board in October 2020 and in May 2021 for additional development. REASONS FOR REMAND 1. Service connection for obstructive sleep apnea is remanded. The Veteran seeks service connection for his obstructive sleep apnea (OSA). He asserts that his sleep apnea is secondary to his service-connected post-traumatic stress disorder (PTSD). Service treatment records are silent for complaints or treatment for sleep apnea and it is unclear when the Veteran's obstructive sleep apnea symptoms became manifest. The Veteran was afforded a VA examination in September 2018. The examination demonstrated a diagnosis of OSA. The examiner opined the OSA was not proximately due to or the result of PTSD. The examiner noted that one week prior to the Veteran's sleep study, he complained of stress due to finances but not PTSD and that while there is potential for an association between OSA and PTSD, there are no current research studies to support this. The examiner also pointed to several risk factors that contribute to OSA, to include age, gender, obesity, upper airway soft tissue abnormalities and noted the Veteran's BMI was over 30 at the time of his sleep study, which in turn increases his odds of having OSA. Lastly, the examiner concluded that a more concrete association between OSA and PTSD is insomnia caused by PTSD, but that insomnia was not an issue at the Veteran's last sleep study due to shortened sleep latency. In a December 2019 addendum opinion, the examiner opined the OSA was not aggravated by the PTSD. The examiner indicated that PTSD patients frequently have insomnia and that 70 to 90 percent of them have difficulty falling or staying asleep. The examiner also indicated that patients with sleep apnea have fragmentation of sleep, equivalent to insomnia, which in turn does not imply that sleep apnea is caused or aggravated by PTSD but conversely the opposite. The examiner noted the Veteran's complaints in his sleep study for poor sleep hygiene and Class IV Mallampti airway, known to correlate with OSA. Lastly, the examiner concluded there was no evidence of insomnia in the Veteran's sleep study because 10 percent of his arousals occurred during REM sleep, accounting for 20 percent of the night, and that due to nightmares occurring during REM sleep, there was no evidence of nightmares at such time. In its May 2021 decision, the Board found the September 2018 VA opinion is inadequate. First, the examiner noted in the aggravation opinion that 70 to 90 percent of PTSD patients have insomnia, known to be associated with both PTSD and OSA. However, the examiner also found the Veteran did not have insomnia based on one sleep study. Second, the examiner also failed to opine whether the Veteran's sleep apnea is related to service on a direct basis. For these reasons, the Board finds the September 2018 VA examination is inadequate for determining entitlement to service connection for OSA. In June 2021, a new VA examination was conducted. After an in-person examination and a review of the Veteran's record, the examiner opined that the Veteran's OSA is less likely than not incurred in or caused by an in-service injury, event, or illness as the Veteran did not complain of apnea symptoms or snoring during service. Further, the examiner reasoned that medical treatment records do not show complaints of sleep apnea symptoms until 2017, 10 years after discharge from active duty. Regarding secondary service connection to PTSD, the examiner noted the Veteran's Mallampati score of IV, which indicates a structural cause of OSA. The examiner also noted the Veteran's BMI and the fact that the Veteran's sleep study showed a positional preponderance, which also indicates structural causes of OSA. After citing a few studies or articles related to the condition, the examiner opined that the Veteran's genetics and alcohol consumption as well as eating habits are the most likely cause of his obesity and that his PTSD would be less likely than not a significant factor. The Board finds the June 2021 VA examination inadequate for decision making purposes. When VA undertakes to provide an examination in a service connection claim, it must ensure that the examination is adequate for decision-making purposes. See 38 C.F.R. § 3.159(c)(4); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Here, the examiner did not address whether the Veteran's PTSD aggravated, or worsened, his sleep apnea beyond its natural progression. In cases where both causation and aggravation are at issue, a medical opinion must address both. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). Further, although the examiner opined that the Veteran's PTSD is less likely than not a significant factor to the Veteran's obesity, the examiner did not address whether the Veteran's obesity aggravated the Veteran's service-connected PTSD. The Board notes that "less likely than not a significant factor" does not answer the question of whether the Veteran's PTSD aggravated his obesity. The Board observes that obesity may be an "intermediate step" between a service-connected disability and a current disability that may be connected on a secondary basis. 38 C.F.R. § 3.310; see also Walsh v. Wilkie, 32 Vet. App. 300 (2020). In order to complete a proper aggravation analysis where there is a question as to whether obesity is an intermediate step, one must ask the following: (1) whether the service-connected disability (PTSD) aggravated the veteran's obesity; (2) if so, whether the aggravation of obesity as a result of the service-connected (PTSD) disability was a substantial factor in causing the non-service connected condition (sleep apnea); and (3) whether the (sleep apnea) condition would have occurred but for obesity aggravated by the service-connected (PTSD) disability. If these questions are answered in the affirmative, the non-service-connected disability may be service connected on a secondary basis. Walsh v. Wilkie, 32 Vet. App. 300, 304 (2020). On remand, an addendum medical opinion, to include a clear aggravation opinion should be obtained. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013); Atencio v. O'Rourke, 30 Vet. App. 74, 90-91 (2018). 2. Service connection for left ear hearing loss is remanded. The Veteran seeks service connection for left ear hearing loss. In the May 2021 decision, the Board acknowledged a May 2017 VA audiological treatment record that demonstrates that the Veteran may have current left ear hearing loss, for VA purposes, evidenced by a 40dB loss at 4000Hz upon audiological evaluation. See Medical Treatment Records, September 2018. 38 C.F.R. § 3.385 provides that impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000 or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Given May 2017 treatment record, the Board remanded the Veteran's claim for a new examination. In July 2021, a VA examination was conducted. Although the Veteran was found to have sensorineural hearing loss in the left ear, the Veteran does not meet the requirements outlined in 38 C.F.R. § 3.385. However, the Board finds the examination inadequate as it did not address the May 2017 treatment record and whether the Veteran may have demonstrated left ear hearing loss. The matters are REMANDED for the following action: 1. Obtain any outstanding treatment records. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service symptomatology regarding his sleep apnea symptoms, to include whether he experienced day-time tiredness or snoring during service. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Schedule the Veteran for an examination (or telehealth interview, records review, etc. if an in-person examination is not feasible) to determine the nature and etiology of his sleep apnea. The entire claims file must be reviewed by the examiner. The examiner is to conduct all indicated tests. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's sleep apnea had its onset during service or is otherwise related to service, to include whether his sleep apnea is caused or aggravated by his service-connected PTSD. The examiner should address whether it is at least as likely as not that the Veteran's service-connected PTSD caused or aggravated the Veteran's weight gain or obesity, and if so, whether it is at least as likely as not that the weight gain or obesity resulting from the service-connected PTSD was a substantial factor in causing or aggravating his sleep disorder; and, if so, whether it is at least as likely as not that his sleep disorder would have occurred but for weight gain/obesity caused or aggravated by the service-connected PTSD. If aggravation is found, the examiner should identify a baseline level of severity of the Veteran's sleep disorder by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the Veteran's sleep disorder. In reaching a conclusion, the VA examiner must acknowledge and discuss the lay and medical evidence of record as to the onset of the Veteran's sleep problems. 4. Schedule the Veteran for an examination (or telehealth interview, records review, etc. if an in-person examination is not feasible) to determine the nature and etiology of his left ear hearing loss. The examiner must opine as to whether it is at least as likely as not that the Veteran's hearing loss was caused by or related to service, to specifically include noise exposure while in service. In reaching a conclusion, the VA examiner must acknowledge and discuss the lay and medical evidence of record. The examiner must specifically address the May 2017 treatment record demonstrating that the Veteran may have current left ear hearing loss, for VA purposes, evidenced by a 40dB loss at 4000Hz upon audiological evaluation. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sara Leigh, Attorney Advisor 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.