Citation Nr: 21076538 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 20-01 138 DATE: December 27, 2021 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran had active service from July 1966 to May 1969. The Veteran's claim for service connection was originally denied in an October 2012 rating decision by a Regional Office (RO). At that time, the RO found that service connection was not warranted because the probative evidence did not show a clinical diagnosis of sleep apnea, nor that the Veteran had sleep apnea in service, nor that he had sleep apnea related to, or aggravated by, a service-connected disability. The Veteran did not file a timely notice of disagreement to the October 2012 decision. However, when new and material evidence is received during the one-year appeal period following a decision, that evidence must be considered in conjunction with the earlier decision. See 38 C.F.R. § 38 C.F.R. § 3.156(b). In June 2013, a February 2013 private clinical record (Arrhythmia Consultants of Connecticut) was added to the claims file; it reflects that the Veteran "has been using a CPAP mask because of obstructive sleep apnea". Thus, it was new and material evidence because it indicated that he did have a diagnosis (i.e., he had been prescribed a CPAP machine); therefore, his claim did not become final. As such, the matter on appeal stems from the original claim date in April 2012 and is properly construed as a claim for service connection. The Veteran was diagnosed with sleep apnea in October 2012. He contends that his sleep apnea is secondary to his service-connected PTSD. The Board finds that additional development is warranted prior to adjudication of the claim. In support of his claim, the Veteran submitted an October 2018 statement from Dr. T.B.B. (Prime HealthCare) that it is "possible" that the Veteran's PTSD has contributed to, or worsened, the Veteran's obstructive sleep apnea; however, Dr. T.B.B. did not provide any rationale and his statement is too speculative to warrant service connection. See Bostain v. West, 11 Vet. App. 124; see also Obert v. Brown, 5 Vet. App. 30, 33 (1993). The Veteran also submitted a February 2019 opinion by Dr. T.B.B. that it is at least as likely as not that the Veteran's sleep apnea was caused or worsened by the Veteran's PTSD or its "therapy". Again, Dr. T.B.B. did not provide adequate rationale, to include what type of "therapy" for PTSD would as likely as not cause or worsen sleep apnea. An article "Awakening to the dangers of obstructive sleep apnea", which is associated with the claims file, states that obstructive sleep apnea is highly prevalent among combat veterans who have PTSD and who complain of being overly vigilant at night; experiencing nightmares and frequent awakenings; and having nonrestorative sleep. However, the article does not discuss if PTSD adversely affects obstructive sleep apnea, or if, instead, obstructive sleep apnea adversely affects PTSD. A November 2018 Disability Benefits Questionnaire (DBQ) reflects the opinion of the examiner (Dr. J.C.) that it is less likely as not that the Veteran's sleep apnea was caused by his service or by his PTSD. She opined that studies note that there may be a "co-occurrence" of PTSD and sleep apnea, but there is not a study stating that one condition causes the other. She also cited to a study which found that PTSD was associated with decreased adherence to treatment for sleep apnea, but not with sleep apnea itself. (Establishing service connection on a secondary basis on the theory of aggravation requires a showing that a service-connected condition worsened a non-service-connected disability. The inability to use a preferred treatment method for a claimed disability is insufficient for this purpose, absent a showing that such inability increased the severity of the claimed condition. See Spicer v. McDonough, 34 Vet. App. 310 (2021).) The Board finds that an addendum opinion to the November 2018 DBQ is warranted. Dr. J.C. found that the earliest reported diagnosis of sleep apnea was in 2018, and that it was a subjective diagnosis. However, the Board finds that the earliest objective diagnosis was in 2012. An August 2012 private medical record (Sleep Medicine Associates) reflects that the Veteran had an assessment of sleep symptoms of snoring and witnessed apneas suggesting OSA, and that a risk factor was his obesity. It was noted that he should undergo a polysomnogram. The Veteran reported snoring for 15 years, which would be on onset of snoring in approximately 1997. An October 2012 Sleep Medicine Associates (Dr. Shoup) record reflects that upon a sleep study, the Veteran had "severe OSA". It was noted that he should be started on "PAP therapy"; weight loss was advised. As noted above, a February 2013 private record reflects that the Veteran has been using a CPAP mask for sleep apnea; it was noted that he will be followed by Dr. Shoup regarding this. All records from Dr. Shoup should be associated with the claims file. A March 2020 Prime HealthCare Sleep Center record reflects that the Veteran was seen to "reevaluate his obstructive sleep apnea" and a finding that he has a severe disorder. A supplemental opinion should be obtained. The examiner should consider the above noted evidence, and the risk factors for sleep apnea. The examiner should provide an adequate rationale as to all opinions. The matter is REMANDED for the following action: 1. Obtain the Veteran's updated VA treatment records from December 2019 to present. 2. Ask the Veteran to complete and return the necessary authorization (VA Form 21-4142) for VA to secure private treatment records from Sleep Medicine Associates (Dr. Shoup) for all records from 2012 to present, AND from all providers for his PTSD. If the Veteran provides the required authorization, the AOJ should make two requests for the authorized records from these private providers, unless it is clear after the first request that a second request would be futile. 3. Thereafter, obtain a supplemental opinion to the November 2018 DBQ for the Veteran's sleep apnea. The examiner is asked to provide an opinion as to whether it is as likely as not (an approximate balance of evidence) that the Veteran's sleep apnea was caused and/or aggravated by his service, and/or his service-connected PTSD. The examiner should consider the pertinent evidence of record to include: a.) the earliest clinical evidence of sleep apnea in 2012 with the Veteran's report of snoring for 15 years; b.) the Veteran's weight (185 lbs.) upon separation from service in 1969; c.) the Veteran's weight (290 lbs.) upon diagnosis of sleep apnea in 2012; d.) risk factors for sleep apnea; e.) the diagnosis of "severe" sleep apnea in both 2012 and 2020; and f.) the Veteran's "therapy", if any, for PTSD. Regarding aggravation, if it is as likely as not that the Veteran's PTSD or his therapy for such aggravates (worsens) his sleep apnea, the examiner should state, if reasonably feasible, the degree of worsening (i.e., the baseline of the disability before aggravation in comparison to the degree of severity after aggravation). When responding, regardless of whether favorably or instead unfavorably, it is essential the examiner provide rationale preferably citing to evidence in the file supporting conclusions and/or accepted medical authority. Marissa Caylor Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Wishard 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.