Citation Nr: 21072074 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 15-00 286A DATE: December 2, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA), including as secondary to posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served on active duty from June 2001 to December 2006. This appeal to the Board of Veterans' Appeals (Board) is from an October 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ), determining there was not new and material evidence and resultantly denying a petition to reopen this claim for service connection for OSA. The Veteran testified in support of this claim during a hearing in October 2016 before the undersigned Veterans Law Judge of the Board. A subsequent January 2019 Board decision reopened this claim and remanded it back to the RO (AOJ) for further development and consideration including to obtain updated VA and private treatment records pertinent to this claim and then for additional medical comment concerning the nature and etiology of the Veteran's OSA, especially in terms of whether caused or aggravated by his service-connected PTSD. After the claim continued to be denied on remand, in December 2020 the Board also denied the claim, and in response the Veteran appealed to the higher U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC). In a September 2021 Order granting a Joint Motion for Remand (JMR), the Court vacated the Board's decision denying this claim due, in part, to the Board's reliance on inadequate VA examinations and failure to obtain medical comment regarding the posited attribution of the Veteran's OSA to his obesity caused by his PTSD and/or medication to treat it. The Court accordingly remanded this claim back to the Board for further development and readjudication in compliance with agreement in the JMR. To comply with the JMR, the Board in turn is again remanding this claim back to the RO for still more development and consideration, including for the directed supplemental medical comment concerning whether there is any correlation between the Veteran's OSA, obesity (as an "intermediate step"), and his PTSD or medication taken for it. Entitlement to service connection for OSA, including secondary to PTSD During the pendency of this appeal, the Veteran has argued that his OSA began during his service or is otherwise the result of his PTSD, including due to obesity caused by his PTSD and his medications used to treat this mental disorder. The Veteran maintains that his OSA symptoms began in Iraq when he would hold his breath to avoid falling asleep during late-night guard duty. He returned from a 15-month combat deployment to Iraq in July 2004. His service treatment records (STRs) dated in March 2005 report shortness of breath with chest pain, preventing sleep for 3 days. At the time, he was 22 years old and weighed 180 pounds. He was treated with sleep medication, but records throughout 2006 report continued difficulties falling and staying asleep. Moreover, during this same period, he began treatment for PTSD and trazodone was prescribed to control symptoms and help him sleep. In October 2006, he weighed 201 pounds and had a body mass index (BMI) of 31. His military service ended in December 2006. The January 2011 sleep study diagnosing OSA was completed when the Veteran was 29 years old, weighed 200 pounds, and had a BMI of 31. The sleep study did not report any physical factors relevant to OSA, such as weight or craniofacial structure. In May 2011, the drug sertraline was prescribed for his PTSD. However, and was noted in granting the JMR, the June 2012 and December 2019 VA OSA medical opinions failed to credit the Veteran's statements that his symptoms began in service, did not assess whether his PTSD or PTSD medications caused obesity that, in turn, caused his OSA, and did not assess aggravation of his OSA by his PTSD or PTSD medication. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006); El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (holding that medical opinions addressing the issue of secondary service connection are inadequate when they fail to adequately encompass the question of aggravation); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); 38 C.F.R. § 4.2. Further, the December 2019 opinion found that the Veteran's obesity, age, and male gender were more likely the cause of his OSA than his military service. But, in so concluding, that examiner referenced the Veteran's age and weight, ignoring the circumstances of his initial diagnosis in 2008 (per lay statements) or even in January 2011 (per the sleep study on record). See Reonal v. Brown, 5 Vet. App. 458 (1993) (An opinion is only as good as the history on which it was based; thus, the Board must reject a medical opinion based on an inaccurate factual premise). In sum, the record confirms the Veteran has OSA, so this claimed disability, contains evidence at least suggesting that it began during or was otherwise caused by his service or a service-connected disability, but is devoid of an adequate medical opinion on which the Board can base its finding. Thus, more medical comment is needed. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Accordingly, this claim is again REMANDED for the following still additional development and consideration: Obtain additional medical comment (addendum opinion) regarding the etiology of the Veteran's OSA, including especially in terms of: (a) Whether it is at least as likely as not (50 percent or greater possibility) directly related to his service, considering especially his testimony under oath that his symptoms began during his service (b) Alternatively, whether it is at least as likely as not (50 percent or greater possibility) it is secondarily related to his service, meaning: 1) his service-connected PTSD or medications taken for it caused or aggravates his OSA; or 2) whether his PTSD or medications taken for it caused or aggravates his obesity and his obesity, in turn, caused or aggravates his OSA (i.e., was his obesity an "intermediate step" in this posited correlation?). *Whether the Veteran actually needs to be re-examined to provide this additional medical comment, versus just file review, is left to the discretion of the examiner designated to provide this additional medical comment. To assist in making these important determinations, the claims file, including a complete copy of this remand and the JMR, must be made available to and reviewed by the examiner. It is essential the examiner provide rationale for the responses, irrespective of whether favorable or unfavorable to the claim, preferably citing to evidence in the file supporting conclusions and/or accepted medical authority and using the correct legal standard. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Stearns, 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.