Citation Nr: 21073963 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 14-40 579 DATE: December 13, 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 a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1965 to August 1967. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2021 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing in June 2017 before a Veterans Law Judge who is no longer available to participate in the instant appeal. In July 2020, VA notified the Veteran that the Veterans Law Judge that presided over the June 2017 Board hearing is no longer available to participate in the instant appeal and gave the Veteran the opportunity to testify at another Board hearing. In August 2020, the Veteran declined the option to testify at another Board hearing and requested that the appealed issues be decided based on the evidence of record. The Board previously remanded these issues in August 2021, March 2021, and September 2020. The issue of service connection for OSA was also remanded in August 2019. Unfortunately, substantial compliance with the prior remand was not achieved. Therefore, another remand is necessary. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for OSA The August 2021 Board remand instructed the RO to obtain an addendum opinion. The opinion was to include a discussion of the lay and medical evidence indicating that the Veteran's sleep apnea is manifested by snoring. Additionally, the opinion was required to include a discussion of the relevancy, if any, of the printouts of online medical literature submitted by the Veteran. Subsequently, an October 2021 VA examiner found the Veteran's OSA was not at least as likely as not aggravated beyond its natural progression by PTSD. He explained there was no treatment record in the file for diagnosis of OSA stated as due to service-connected PTSD. PTSD can affect sleep and lead to nightmares and insomnia but that is different than OSA. OSA is not mental related or caused illness. It is caused by obstruction in upper airways during sleep and the treatment is CPAP not psych medications. Also, controlling PTSD with psych medications will not control the OSA because they are separate conditions in pathophysiology and treatment. OSA does not get aggravated by PTSD if compliance with treatment is followed, as the treatment of OSA is the CPAP. Once the CPAP is used it will eliminate the OSA. The October 2021 VA examiner also found the Veteran's OSA was less likely than not incurred in or caused by service. He explained there was no service treatment record found in the file for diagnosis or treatment of OSA. The separation record from August 1967 showed no history of frequent trouble sleeping. There was no mention of sleep condition or history. The earliest sleep apnea was noted during April 2005 overnight polysomnography interpretation that was many years after service. The examiner did not discuss the Veteran's lay statements. Specifically, the Veteran testified at his June 2017 Board hearing that he noticed his sleep disturbance when he returned from service. He also explained that an Army colleague joked about hearing the Veteran snoring while in service. Nor did he otherwise address the Veteran's reported snoring since service or the articles submitted by the Veteran, as required by the previous remand. An addendum opinion that addresses the prior directives is needed. 2. Entitlement to a TDIU is remanded. The issue of TDIU is inextricably intertwined with the claim for sleep apnea. Therefore, the Board must defer consideration of that claim at this time. See Harris v. Derwinski, 1 Vet. App. 181 (1991). The matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. 2. Obtain an addendum opinion from an appropriate clinician on the etiology of the Veteran's obstructive sleep apnea. The clinician must opine on the following: (a) Whether the Veteran's obstructive sleep apnea at least as likely as not (1) began during active service or (2) is related to an in-service injury, event, or disease to include reports of snoring in service. (b) Whether the Veteran's obstructive sleep apnea is at least as likely as not (1) proximately due to service-connected PTSD; or (2) aggravated by service-connected PTSD. Provide a rationale that addresses causation and aggravation as independent concepts. The examiner is advised that secondary service connection does not require "permanent" worsening of the condition being claimed by the service-connected disability and requires considering whether there has been any worsening, no matter how incremental, so even if not above and beyond the condition's natural progression. See Ward v. Wilkie, 31 Vet. App. 233 (2019). The examiner must provide separate findings and rationales relating to causation and aggravation The opinion should include a discussion of the Veteran's documented history and assertions, to include the lay and medical evidence indicating: the Veteran's sleep apnea is manifested by snoring; the Veteran noticed his sleep disturbance when he returned from service; and an Army colleague joked about hearing the Veteran snoring while in service. The examiner must also address the article submitted by the Veteran with his February 2013 notice of disagreement, titled "Posttraumatic Stress Disorder, Sleep, and Breathing" which includes a section on PTSD and sleep apnea. The article indicates in part, "A background of hyperarousability in patients with PTSD increased instability of sleep continuity. This instability probably contributes to the development of both obstructive sleep apnea (OSA) and central sleep apnea." It further notes that "patients with PTSD were much less able to successfully utilize CPAP over a relatively short-term interval." A compete rationale must be provided for all opinions rendered. An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. 3. Readjudicate the issues on appeal. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Vemulapalli, 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.