Citation Nr: 21073511 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 19-21 450 DATE: December 8, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. REASONS FOR REMAND The Veteran served on active duty from April 2001 to January 2005. This matter comes before the Board of Veteran's Appeal (Board) on appeal from a December 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to service connection for the Veteran's obstructive sleep apnea (OSA) is remanded. This matter was previously remanded in August 2021 for further development, to include a VA examination. The case has now returned to the Board for appellate review and, although it again regrets further delay, the Board finds that additional remand is required. The Board finds that the October 2021 examiner's medical opinion is not in compliance with the Board's August 2021 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In its remand, the Board directed the examiner to address whether the Veteran's OSA had its onset during service and whether her OSA was proximately due to or aggravated by the Veteran's service-connected disabilities. However, the examiner failed to adequately address whether the Veteran's OSA had its onset during service, including whether the Veteran's in-service symptoms of headaches, shortness of breath, and hypersomnolence were indicative of the clinical onset of sleep apnea. Second, the examiner failed to adequately address whether the Veteran's asthma and PTSD caused her OSA, to include considering the effects of the Veteran's medicine on her OSA disability. Third, the examiner failed to provide adequate rationale to explain why none of the Veteran's service-connected disabilities aggravated the Veteran's OSA disability, but instead used rationale that explained why these conditions did not cause her OSA. As an overview, the Board will first summarize the October 2021 VA examiner's findings. Next, the Board will explain the deficiencies in the October 2021 VA medical opinion, so that the Veteran will understand why the claim is being remanded again. Here, the October 2021 examiner explained that the risk factors for OSA included age, male gender, obesity, craniofacial morphology, or upper airway soft tissue abnormalities. See October 2021 VA Medical Opinion. In addressing the relationship between OSA and the Veteran's service-connected posttraumatic stress disorder (PTSD), the examiner explained that many patients with PTSD have frequent concomitant insomnia and that PTSD may have a role in altering the circadian rhythms, which are related to the OSA symptom of diurnal mood variation. Id. However, the examiner found that no medical studies have shown a direct causative relationship between PTSD and altering the upper airway anatomically, as is found in OSA. Id. For the Veteran's asthma and OSA, the examiner stated that the two disorders appear to have different mechanisms of pathology and are incidental, rather than causative etiology. Id. The examiner also stated that the Veteran's service-connected gastroesophageal reflux disease (GERD), tinnitus, allergic rhinitis, hypertension, and herpes simplex virus have not been linked to OSA. Id. However, as noted above, the Board finds that this opinion is inadequate for adjudicative purposes. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). First, the Veteran's service treatment records (STRs) show that the Veteran complained of a cough along with difficulty sleeping, hypersomnolence, and recurrent upper respiratory tract infections. See STRs dated July 2002, February 2003, and May 2005. Additionally, within a year of separating from active duty, the Veteran reported that she had to sleep upright due to shortness of breath. See January 2007 Government Treatment Record. Further, the Veteran reported that she was told that she had growths and scar tissue on her airways, but she has never been a smoker. See April 2015 Correspondence. Therefore, the Board finds that a medical opinion is needed to address these symptoms and whether the Veteran's OSA had its clinical onset during service. Second, the examiner failed to adequately address whether the OSA was aggravated by the Veteran's service-connected disabilities. Although the examiner acknowledged that the PTSD may affect the OSA symptom of diurnal mood variation, he failed to address why this did not aggravate the Veteran's OSA, especially in light of the Veteran's multiple reports of hypersomnolence. See May 2005 Post Deployment Health Assessment; November 2010 Private Treatment Record. Relatedly, in finding that PTSD did not alter the anatomy of the upper airway, the examiner also failed to address whether the Veteran's PTSD prescription of zolpidem, which is a muscle relaxer, did not cause and/or aggravate the Veteran's OSA. See April 2019 Private Treatment Record. Third, the examiner failed to address whether the Veteran's obesity was caused by the Veteran's service-connected asthma. The Veteran's service and post-service treatment records show that her asthma and shortness of breath negatively affect her ability to exercise. See VA Examinations February 2003 and January 2006. Additionally, the Veteran stated that her use of steroids to treat her asthma condition caused a significant weight gain. See September 2015 Private Treatment Record; see also, September 2019 Correspondence. Fourth, the examiner provided no rationale or supporting medical literature regarding his finding that the Veteran's OSA was not caused by or aggravated by her service-connected hypertension, GERD, and allergic rhinitis. However, the Veteran's representative submitted numerous medical literature abstracts that suggests that OSA may be caused by and/or aggravated by her posttraumatic stress disorder (PTSD), asthma, hypertension, GERD, and tinnitus disabilities. See November 2021 Informal Hearing Presentation. Based on the foregoing, the Board finds that a VA addendum opinion is warranted. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In ordering a remand in the instant case, the Board is not making a preliminary formal finding as to the credibility of the Veteran's lay reports. Rather, the Board is merely requesting that the examiner on remand consider the Veteran's own descriptions of the history of her OSA disability. See Smith v. Wilkie, 32 Vet. App. 332, 338-39 (2020). The matters are REMANDED for the following action: 1. Obtain a new opinion from a new clinician addressing the etiology of the Veteran's OSA. The clinician should be given a copy of this Board remand. If the examiner request, an examination may be ordered to address the below: (a.) Please state whether it is at least as likely as not (50 percent probability or more) that the Veteran's OSA disability had its onset in, was caused by, or is otherwise related to service. a. In providing a response to Part (a), please consider the Veteran's in-service symptoms of difficulty sleeping, hypersomnolence, and recurrent upper respiratory tract infections and comment on whether these were early signs or symptoms of the Veteran's OSA disability. See STRs dated July 2002, February 2003, and May 2005 and 2007 Government Treatment Record. b. Please comment on whether upper respiratory tract infections may be caused by growths and scar tissue on the upper respiratory tract. See April 2015 Correspondence and October 2021 VA Medical Opinion. c. If you find that upper respiratory tracts infections may be caused by tissue abnormalities on the upper respiratory tract, please determine whether it was an early sign or symptom of the Veteran's OSA disability. For the purpose of providing the opinion requested, please accept as valid the Veteran's in-service symptoms, and state whether a nexus between the Veteran's OSA disability and service is medically consistent with the information provided by the Veteran. (The Board reminds the Veteran that in asking the examiner to accept the history he provided, the Board is not at this time making an assessment of the credibility of his statements). (b.) Please state whether it is at least as likely as not (50 percent probability or greater) that the Veteran's OSA disability was caused by the service-connected PTSD. (c.) Please state whether it is at least as likely as not that the Veteran's OSA disability was aggravated by his service-connected PTSD. Here, aggravated means worsened beyond the natural progression of the condition. The examiner's opinion should reflect consideration of the Court's holding in Ward that aggravation need not be permanent in nature. a. In addressing Part (b), please take into account the October 2021 VA examiner's finding that PTSD may affect the Veteran's diurnal mood variation and determine whether PTSD has aggravated the Veteran's OSA symptoms. b. In addressing Part (b), please determine whether the Veteran's PTSD prescription of zolpidem, a muscle relaxer, aggravated the Veteran's OSA disability, by relaxing the muscles of tongue and soft palate and causing an obstruction of the airway. See April 2019 Private Treatment Record. (d.) If you find that the Veteran's OSA disability has been aggravated by the Veteran's PTSD disability, please estimate the baseline severity of the Veteran's OSA disability before it was aggravated by his service-connected psychiatric disorder. (e.) Please state whether it is at least as likely as not (50 percent probability or greater) that the Veteran's OSA disability was caused by the service-connected asthma. a. In addressing Part (e), please take into account the Veteran's use of steroids to control her asthma and determine whether the steroids caused her weight gain. See April 2019 Private Treatment Record. b. In addressing Part (e), please take into account the Veteran's asthma symptom of shortness of breath and its effects on her ability to exercise. See April 2019 Private Treatment Record. (f.) Please state whether it is at least as likely as not that the Veteran's OSA disability was aggravated by his service-connected asthma. Here, aggravated means worsened beyond the natural progression of the condition. The examiner's opinion should reflect consideration of the Court's holding in Ward that aggravation need not be permanent in nature. (g.) If you find that the Veteran's OSA disability has been aggravated by the Veteran's asthma disability, please estimate the baseline severity of the Veteran's OSA disability before it was aggravated by his service-connected asthma. (h.) Please state whether it is at least as likely as not (50 percent probability or greater) that the Veteran's OSA disability was caused by the service-connected GERD. (i.) Please state whether it is at least as likely as not that the Veteran's OSA disability was aggravated by his service-connected GERD. Here, aggravated means worsened beyond the natural progression of the condition. The examiner's opinion should reflect consideration of the Court's holding in Ward that aggravation need not be permanent in nature. (j.) If you find that the Veteran's OSA disability has been aggravated by the Veteran's GERD disability, please estimate the baseline severity of the Veteran's OSA disability before it was aggravated by his service-connected GERD. (k.) Please state whether it is at least as likely as not (50 percent probability or greater) that the Veteran's OSA disability was caused by the service-connected allergic rhinitis. (l.) Please state whether it is at least as likely as not that the Veteran's OSA disability was aggravated by his service-connected allergic rhinitis. Here, aggravated means worsened beyond the natural progression of the condition. The examiner's opinion should reflect consideration of the Court's holding in Ward that aggravation need not be permanent in nature. (m.) If you find that the Veteran's OSA disability has been aggravated by the Veteran's allergic rhinitis disability, please estimate the baseline severity of the Veteran's OSA disability before it was aggravated by his service-connected allergic rhinitis. (n.) In providing the requested opinions, please review the medical literature cited in the November 2021 Informal Hearing Presentation. The examiner should provide a complete rationale for any opinion rendered. If the examiner's opinion is negative, he or she must clearly explain why. If he or she cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why that is so. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Foster, 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.