Citation Nr: 21074702 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 17-56 086A DATE: December 16, 2021 ORDER 1. Entitlement to an effective date prior to June 10, 2014, for the award of service connection for posttraumatic stress disorder (PTSD) has been withdrawn and is dismissed. REMANDED 2. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected PTSD, is remanded. FINDING OF FACT The Veteran withdrew the appeal for entitlement to effective date prior to June 10, 2014, for the award of service connection for PTSD during the July 2021 Board hearing explicitly, unambiguously, and with a full understanding of the consequences of such action. CONCLUSION OF LAW The criteria for withdrawal of the substantive appeal for entitlement to an effective date prior to June 10, 2014, for the award of service connection for PTSD by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from August 1976 to August 1980 and from November 1990 to June 1991. The Veteran testified before the undersigned Veterans Law Judge (VLJ) during a virtual Board hearing in July 2021. A transcript of the hearing is of record. During the hearing, the VLJ characterized the issue of service connection for obstructive sleep apnea as whether new and material evidence has been submitted to reopen the claim for service connection for obstructive sleep apnea. After considering the procedural history and facts of this case, the Board determines that the Veteran filed a claim for service connection for obstructive sleep apnea and continued to pursue that claim (a decision did not become final), and the Board may address the merits of this appeal. Thus, the Board has characterized this matter as it appears on the first page of this decision. Also, during the hearing, the VLJ agreed to hold the record open for the Veteran to submit additional evidence. Additional medical evidence has been associated with the claims file since the issuance of the statement of the case (SOC) in October 2017; however, waiver of review of this new evidence in the first instance by the Agency of Original Jurisdiction (AOJ) is not necessary as the Substantive Appeal to the Board (VA Form 9) was submitted after February 2013; and thus, waiver is presumed. 1. Entitlement to an effective date prior to June 10, 2014, for the award of service connection for PTSD The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the veteran or by his or her authorized representative. 38 C.F.R. § 19.55. After being sworn in, and in the presence of his attorney, the Veteran stated during the July 2021 Board hearing that he wished to withdraw his appeal for the claim of entitlement to an effective date prior to June 10, 2014, for the award of service connection for PTSD. This withdrawal was (1) explicit; (2) unambiguous; and (3) done with a full understanding of the consequences of such an action on the part of the Veteran. A discussion confirming this withdrawal occurred with the Veteran and his attorney prior to the hearing, but was reiterated on the record as well. Additionally, on the record, the undersigned let the Veteran know that the issue would be included within the decision but that a determination, either favorable or unfavorable, would not be made, and that the consequences of withdrawing the claim is that if he later filed a claim for an earlier effective date, it would be impacted by the fact that he withdrew the issue at the hearing. The undersigned confirmed that he had discussed this withdrawal with the attorney. As noted above, a written transcript of the Veteran's statements is of record. Thus, there are no allegations of errors of fact or law for appellate consideration for the Veteran's claim for entitlement to an effective date prior to June 10, 2014, for the award of service connection for PTSD. 38 C.F.R. § 20.202. The Board does not have jurisdiction to review this claim, and the appeal is dismissed. REASONS FOR REMAND 2. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected PTSD The Board finds a remand of the claim for service connection for obstructive sleep apnea is warranted for an addendum VA medical opinion to determine the cause and nature of this disability. Specifically, the record contains conflicting evidence pertaining as to the causal connection between the Veteran's sleep apnea and the service-connected PTSD. Service connection is warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). The claims file includes a September 2017 VA examination report in which the examiner determined that the Veteran's obstructive sleep apnea was less likely than not (less than 50 percent probability) proximately due to or the result of his service-connected PTSD. The examiner explained that sleep apnea has known predisposing conditions and that the "pathophysiology of sleep apnea is occlusion of the upper airway usually at the level of the oropharynx. Resulting apnea leads to progressive asphyxia until there is brief arousal from sleep whereby airway patency is restored and airflow resumes. The collapse of the airway in obstructive sleep apnea is the generation of a critical subatmospheric pressure during inspiration that exceeds the ability of the airway dilator and abductor muscles to maintain airway stability. Sleep plays a permissive but crucial role by reducing the activity of the muscles and their protective reflex response to subatmospheric pressure. Obesity frequently contributes to the reduction in size of the upper airways, either by increasing fat deposition in the soft tissues of the pharynx or by compressing the pharynx by superficial fat masses in the neck." The examiner noted that at the time of the December 2014 VA sleep/pulmonary physician's note, which showed that he was diagnosed with obstructive sleep apnea, the Veteran was noted to have a body mass index (BMI) of 37, which classifies him as obese, in May 2014. The examiner concluded it is not reported in literature that PTSD causes sleep apnea. The examiner, however, did not address whether PTSD aggravated the sleep apnea. The Veteran contends that his current obstructive sleep apnea was caused or aggravated by his PTSD. For example, during the July 2021 Board hearing, the Veteran and his attorney testified that the Veteran was diagnosed with sleep apnea in 2015, which was after he was diagnosed with PTSD and that medical evidence showed a statistically significant relationship between veterans diagnosed with PTSD and sleep apnea, although an exact pathophysiological relationship has not been identified. They also noted that various VA examinations discuss the Veteran being overweight and that obesity is a contributing factor to his sleep apnea. The Veteran's attorney noted that the Veteran's PTSD is classified as a negative behavior per the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), and that a negative behavior includes lack of physical and mental activity, which leads to a sedentary lifestyle, which is a precursor to obesity. The attorney further noted that the Veteran's obesity is a cause of his sleep apnea, rather than his PTSD. The attorney and the Veteran contended that the Veteran's PTSD causes his sedentary lifestyle, which caused his obesity, which then caused his sleep apnea. The Veteran and attorney submitted a July 2021 private medical opinion from Dr. Syed R. Baber in support of these contentions, and this medical professional, in turn, submitted two studies from November 2005 and April 2015 to support his conclusion, as well as a list of reference materials and sources. The Board notes that obesity cannot qualify as an in-service event to warrant service connection for another disability because it occurs over time. Although service connection is not allowed for obesity on its own, obesity could act as an "intermediate step" to establish service connection for another disability as secondary to an already service-connected disability under certain circumstances. See VAOPGCPREC 01-17 (January 6, 2017); see also Walsh v. Wilkie, 32 Vet. App. 300 (2020). Accordingly, the Board is remanding the claim for an addendum VA medical opinion to determine whether the Veteran's PTSD aggravated the obstructive sleep apnea or whether the obesity was a substantial factor in causing obstructive sleep apnea, and whether the obstructive sleep apnea would not have occurred but for obesity caused by the service-connected PTSD. Thus, a remand is necessary for an addendum VA medical opinion. The matter is REMANDED for the following actions: Refer the Veteran's claims file to a qualified medical professional to provide an addendum opinion on the Veteran's obstructive sleep apnea. If the examiner finds that an in-person examination is necessary, then schedule an examination. If an examination is scheduled, any indicated evaluations, studies, and tests deemed to be necessary by the examiner should be performed. The examiner should be provided a copy of the below facts. To assist in a review of the claims file, the examiner is informed of the following facts with citations in the record, when applicable: The Veteran served on active duty from August 1976 to August 1980 and from November 1990 to June 1991. The Veteran alleges that his service-connected PTSD caused him to develop obstructive sleep apnea. Numerous service treatment records show the Veteran's weight and height, including in May 1986 where he was noted to be 73 inches tall and weighing 204 lbs., in November 1990 where he was noted to be 73 inches tall and weighing 227 lbs., and in April 1991 where he was noted to be 73 inches tall and weighing 210 lbs. See VBMS entry with document type "STR Medical," receipt date 12/16/2014, at pp. 4, 20, 32. Post-service VA treatment records show a body mass index (BMI) of 39 in January 2006 and a BMI of 38 in October 2006 . See VBMS entry with document type "CAPRI," receipt date 06/02/2017, at pp. 535, 589. An April 2014 VA telephone triage note shows the Veteran requested to undergo a sleep study in connection with attaining employment as a school bus driver. See VBMS entry with document type "Medical Treatment Record-Government Facility," receipt date 04/19/2015, at p. 173. A December 2014 VA pulmonary diagnostic study note shows that the Veteran had positional sleep apnea at best, a BMI of 37, obesity, hypertension, and poorly-controlled diabetes mellitus. See VBMS entry with document type "CAPRI," receipt date 06/02/2017, at pp. 243-45. A September 2017 VA examination report shows the examiner opined that the Veteran's obstructive sleep apnea was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected PTSD. The examiner wrote, "The pathophysiology of obstructive sleep apnea is occlusion of the upper airway usually at the level of the oropharynx. Resulting apnea leads to progressive asphyxia until there is brief arousal from sleep whereby airway patency is restored and airflow resumes. The collapse of the airway in obstructive sleep apnea is the generation of a critical subatmospheric pressure during inspiration that exceeds the ability of the airway dilator and abductor muscles to maintain airway stability. Sleep plays a permissive but crucial role by reducing the activity of the muscles and their protective reflex response to subatmospheric pressure. Obesity frequently contributes to the reduction in size of the upper airways, either by increasing fat deposition in the soft tissues of the pharynx or by compressing the pharynx by superficial fat masses in the neck." The wrote that it is not reported in medical literature that PTSD causes sleep apnea. See VBMS entry with document type "C&P Exam," receipt date 09/26/2017, at pp. 1-2. While the September 2017 examiner provided an opinion as to whether the service-connected PTSD caused obstructive sleep apnea, the examiner did not address whether the service-connected PTSD aggravated the obstructive sleep apnea. Aggravation is different from causation in that it did not cause the disability but rather caused an increase in severity that is not due to the natural progress of the disability. A July 2021 private medical opinion by Dr. Syed R. Baber shows he opined that the Veteran's obstructive sleep apnea is at least as likely as not secondary to his obesity and service-connected PTSD. This medical professional noted that studies have found that individuals with a psychiatric disorder are more likely to have obesity and diabetes, and that unhealthy behaviors often associated with depressive disorder may place a person at risk for developing morbid obesity. The doctor found that one of the consequences of the Veteran's obesity is his obstructive sleep apnea. The doctor also found that the Veteran's obesity was caused by his service-connected cognitive disorder and that his obstructive sleep apnea is multifactorial due to his service-connected medical events. The doctor provided and cited to 11 references and included the abstracts of two studies to support his findings and opinions. See VBMS entry with document type "Medical Treatment Record-Non-Government Facility," receipt date 07/12/2021, at pp. 1-9. At a July 2021 Board hearing, the Veteran and his attorney contended that his service-connected PTSD caused his obesity, which in turn caused his obstructive sleep apnea. See VBMS entry with document type "Hearing Transcript," receipt date 07/12/2021, at pp. 1-8. VA law and regulations specify that obesity cannot qualify as an in-service event to warrant service connection for another disability because obesity occurs over time. Although service connection is not allowed for obesity on its own, obesity can act as an "intermediate step" to establish service connection for another disability as secondary to an already service-connected disability under certain circumstances. The examiner's review of the record is NOT restricted to the evidence listed above. This list is provided in an effort to assist the examiner in locating potentially relevant evidence. Based upon a review of the evidence and sound medical principles, the VA examiner should: (a.) Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's current obstructive sleep apnea is aggravated by the service-connected PTSD. Aggravation is different from causation in that it did not cause the disability but rather caused an increase in severity that is not due to the natural progress of the disability. Please state upon what facts, medical principles, and/or medical literature the opinion is based. (b.) If the examiner finds that the service-connected PTSD caused an increase in severity of the obstructive sleep apnea that is not due to the natural progress of the disability, the examiner is asked to state whether there is medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the obstructive sleep apnea prior to aggravation. If the examiner is unable to establish a baseline for the obstructive sleep apnea prior to the aggravation, he or she should state such and explain why a baseline cannot be determined. (c.) If the answer to (a.) is negative, is it at least as likely as not (50 percent probability or greater) that the Veteran's PTSD caused or aggravated the Veteran's obesity? Please state upon what facts, medical principles, and/or medical literature the opinion is based. (d.) If the answer to (c.) is affirmative, is it at least as likely as not (50 percent probability or greater) that the Veteran's obesity was a substantial factor in causing his obstructive sleep apnea? Please state upon what facts, medical principles, and/or medical literature the opinion is based. (e.) If the answer to (d.) is affirmative, is it at least as likely as not (50 percent probability or greater) that the obstructive sleep apnea would not have occurred but for obesity caused or aggravated by the service-connected PTSD? Please state upon what facts, medical principles, and/or medical literature the opinion is based. The examiner is asked to provide a rationale for each opinion given. If the examiner is unable to provide an opinion without resorting to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Hodzic, 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.