Citation Nr: 21006383 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 16-22 516 DATE: February 4, 2021 ORDER Entitlement to service connection for sleep apnea (OSA) as secondary to an acquired psychiatric disorder is granted. REMANDED Entitlement to service connection for coronary artery disease (CAD) is remanded. Entitlement to service connection for a respiratory condition to include as due to CAD and/or an undiagnosed illness is remanded. FINDING OF FACT There is a proximate balance of positive and negative evidence to show that the Veteran’s sleep apnea is caused or aggravated by his acquired psychiatric disorder. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea to include as secondary to an acquired psychiatric disorder, have been met. 38 U.S.C. §§ 1110, 1116, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in active duty service with the Army from June 1985 to February 1996 to include service in Southwest Asia. This matter is on appeal from a July 2011 rating decision. The Veteran was afforded a March 2019 hearing before the undersigned Judge. A transcript of the hearing has been associated with the claims record. The Board remanded this appeal in October 2019 for additional development. Service Connection Generally, service connection is warranted when a claimant shows: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service the so-called ‘nexus’ requirement.” Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (a). Also, a disability that is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). To prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). When determining service connection, all theories of entitlement, direct and secondary, must be considered if raised by the evidence of record, applying all relevant laws and regulations. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). Pertinent VA law and regulations provide that a veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent (i.e., Agent Orange). 38 U.S.C. § 1116 ; 38 C.F.R. § 3.307 (a) (6)(iii). The diseases that are listed at 38 C.F.R. § 3.309 I , including Parkinson’s disease, shall be presumptively service connected if there are circumstances establishing herbicide agent exposure during active military service, even though there is no record of such disease during service. Generally, the regulation applies where an enumerated disease becomes manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307 (a)(6)(ii). When evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility and probative value of proffered evidence in the context of the record as a whole. See Evans v. West, 12 Vet. App. 22, 26 (1998). The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. 38 U.S.C. § 5107 (b); See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Sleep apnea The Veteran contends that his sleep apnea is caused or aggravated by his acquired psychiatric disorder. The Veteran is currently service connected for an acquired psychiatric disorder. Review of the Veteran’s medical treatment record shows treatment for sleep apnea. A March 2002 sleep study found the Veteran with hypersomnia with sleep apnea and September 2002 sleep study found the Veteran with sleep apnea. A March 2020 VA examination diagnosed the Veteran with sleep apnea. As such, the Board finds the Veteran with a current disability. Review of the Veteran’s service treatment records (STRs) shows in the March 1996 separation examination, the Veteran reported frequent trouble sleeping which began after his return from deployment to Saudi Arabia. Review of the medical treatment shows the Veteran was noted with a history of sleep apnea and underwent surgical procedures for treatment. In a submitted September 2010 statement from the Veteran’s friend who were roommates from February 1998 to May 1999, the friend stated that they observed the Veteran snoring very loudly and at times would stop breathing while sleeping. At the Veteran’s March 2019 hearing, the Veteran’s representative noted that the Veteran underwent several sleep studies which found the Veteran with severe apnea and underwent surgery for treatment. The Veteran testified that he began noticing symptoms relating to sleep apnea during while stationed in Germany in around 1993 to 1994 a few years before his separation from service where he was having issues making formation because he was too tired and could not get up. The Veteran stated that fellow soldiers at the time told him that they had observed him snoring. In a submitted April 2019 private medical opinion, the treating provider opined that the Veteran’s acquired psychiatric disorder was more likely than not responsible for the Veteran’s sleep apnea. The provided noted that sleep apnea risk factors in more than 60 percent of the cases included obesity; narrowed airway; chronic nasal congestion; older age; gender; and smoking. The provider stated that patients with sleep apnea there were a “statistically significant prevalence of psychiatric conditions” and cited a study of Iraq and Afghanistan Veterans seeking posttraumatic stress disorder (PTSD) treatment and found them to be assessed as being at high risk for sleep apnea. Although the provider acknowledged that “an exact pathophysiological relationship has not been established”, the provider stated that “it could be implicated that there is a statistically significant relationship in the Veteran-diagnosed mental health disorder and [sleep apnea].” Regarding the Veteran, the provider stated that the Veteran has been diagnosed with severe obstructive sleep apnea and continued to have sleep issues even with prescribed therapy. The provider opined “given there are no other identifiable risk factors, one must conclude the etiology to be his diagnosed [acquired psychiatric disorder].” The Veteran was afforded a March 2020 VA examination. The VA examiner diagnosed the Veteran with sleep apnea. The Veteran reported the onset of his symptoms to be in 2002 and noted the person he was dating at the time complained that she could not sleep because of his snoring which lead to a sleep study diagnosing him with sleep apnea. The examiner noted the Veteran reported getting corrective surgery for enlarged tonsils and adenoids. The examiner found it was less likely than not that the Veteran’s sleep apnea was related to his service. The examiner noted the Veteran’s 2002 diagnosis of sleep apnea was years after his separation from service. The examiner next stated that the Veteran’s STRs did not contain complaints, treatments or diagnosis for sleep apnea. The examiner stated that sleep apnea can be caused by a person’s physical structure or medica condition to include obesity, large tonsils, genetic syndromes, or heart and kidney failure; the examiner found the Veteran’s physical structure was the cause of his sleep apnea and underwent an uvulopalatopharyngoplasty with excision of his tonsils in 2002. As such, the examiner found no nexus was established. The examiner found it was less likely than not that the Veteran’s sleep apnea was caused or due to his service-connected acquired psychiatric disorder. The examiner noted that studies showed an increased risk for sleep apnea in patients with PTSD but no finding of a relationship of causation. The examiner reiterated the risk factors for developing sleep apnea and stated the Veteran had several risk factors for sleep apnea to include “smoking, history of alcohol abuse, race, age, and gender.” In a September 2020 correspondence from the Veteran’s representative, the representative stated that the March 2020 VA opinion failed to address the April 2019 private opinion, submitted lay statements in September 2010, and the Veteran’s testimony. The representative stated the VA examiner cited to a website on the definition and causes for sleep apnea; however, the representative notes that review of the website only gives general information without citing to specific research. The representative also notes that the VA examiner incorrectly found the Veteran with a history of smoking and obesity which the Veteran denied. The Board notes that the March 2020 VA examiner opinion did not address the Veteran’s testimony where he complained of symptoms of sleep apnea while stationed in Germany during his service. The examiner’s opinion stated the Veteran had several risk factors to include smoking and a history of alcohol abuse; however review of the Veteran’s March 1996 separation examination show the Veteran denied being a smoker or used tobacco, and review of the medical treatment record does not show the Veteran with a history of smoking or alcohol abuse. The VA examiner listed risk factors but did not specifically indicate how they applied to the Veteran’s case. The examiner also did not opine whether the Veteran’s acquired psychiatric disorder aggravated the Veteran’s sleep apnea or establish a baseline. Medical opinions based on an inaccurate factual premise are not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). As such, the Board finds the March 2020 VA opinion inadequate and affords it less probative value. Considering the competent and credible evidence of record, including the medical treatment records and opinions, the Board finds the evidence is at least in equipoise. The Veteran has a current diagnosis for sleep apnea. The Veteran has competently, and credibly reported symptoms related to sleep apnea during his active duty service. There is a proximate balance of positive and negative evidence with the April 2019 private opinion and March 2020 VA examiner opinion regarding whether the Veteran’s sleep apnea was related to his active duty service to include as due to his service-connected acquired psychiatric disorder. As such, the benefit of the doubt is resolved in the Veteran’s favor and finds that the Veteran’s sleep apnea is caused or due to his service-connected acquired psychiatric disorder. Accordingly, a grant of service connection is warranted. REASONS FOR REMAND The Board finds that remand is warranted for additional development. Coronary Artery Disease The October 2019 Board decision remanded to afford the Veteran a VA examination. Review of the claims record shows in March 2020 VA examination was held; however, the examination was for an Artery and Vein condition (Vascular Diseases including Varicose Veins) and not for a cardiac or heart disability. The examiner noted that no diagnosis of the vascular disease was confirmed and stated that this was the “Wrong DBQ more appropriately assessed on the heart DBQ.” The examiner opined that the Veteran’s CAD was less likely than not related to his active duty service because the Veteran’s service treatment records (STRs) did not contain complaints, treatment or diagnoses for the condition. However, no discussion of the October 1997 Gulf War examination assessment or October 2015 physical examination was made by the examiner in the opinion as requested by the October 2019 Board remand instructions. As such, the Board finds the opinion inadequate, and remand warranted for the correct VA examination be afforded to the Veteran. Respiratory condition In the October 2019 Board decision, the Board found the October 2015 VA medical opinion was inadequate and remand was warranted for an addendum opinion to address the Veteran’s reported exposure to smoke from oil fires, trash fires, fumes from chemicals and fumes, nerve gas and pesticides as stated in his October 1997 Gulf War examination and for rational whether the Veteran’s claimed condition was caused by environmental exposure in Southwest Asia. A March 2020 VA medical opinion was obtained however review of the opinion shows the examiner reiterated the October 2015 rationale and added: “To further note; Veteran was 20 years post-duty without comprehensive work up for dyspnea to rule out contributing factors.” The examiner also noted the Veteran’s medical treatment record showing an angioplasty in 2006 and 2008, and that CAD and ischemic heart disease could lead to physical decondition. The opinion does not address whether the Veteran’s claimed respiratory condition was an undiagnosed illness or medically unexplained chronic multisystem illness (MUCMI) or discuss the October 1997 Gulf War examination statements regarding environment exposure as requested by the October 2019 Board remand. In a September 2020 correspondence from the Veteran’s representative, the representative asserted that the issue of the respiratory condition is intertwined with the issue for CAD. As the March 2020 VA medical opinion has not opined on the raised secondary theory of entitlement and the issue for CAD is also being remanded, the Board finds that an addendum opinion is also required to address the secondary theory. The September 2020 correspondence also referred to a July 2020 private medical opinion in which the representative stated opines the Veteran’s symptoms of the respiratory system did not have a known etiology. Review of the record does not show this medical opinion has been associated with the claims record. As such, there are also outstanding private medical records that need to be associated with the record. Therefore, under these circumstances, the Board finds there are outstanding records to be associated with the record; the March 2020 opinions inadequate; and the October 2019 Board remand directives were not substantially complied with; therefore, another remand is required. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that where remand instructions are not followed, the Board errs as a matter of law when it fails to ensure compliance). Therefore, the Board finds that remand for additional development and compliance with the October 2019 Board remand instructions is warranted. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated and outstanding treatment records to include the July 2020 private medical opinion. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s coronary artery disease. The record and a copy of this remand must be made available to the examiner. The VA examiner should opine as to the following: (a.) Is it at least as likely as not that (i.e., a probability of 50 percent or greater) the Veteran’s coronary artery disease is etiologically related to the Veteran’s active duty service? (b.) The examiner should address the October 1997 Persian Gulf War examination and February 2015 ischemic heart disease disability benefits questionnaire (DBQ). 3. Return the claims file to the VA examiner who provided the March 2020 medical opinion on the Veteran’s respiratory condition. The record and a copy of this remand must be made available to the examiner. If the examiner is not available, request an opinion from another qualified VA examiner. The VA examiner should opine as to the following: (a.) Please state whether the symptoms relating to the Veteran’s claimed respiratory condition is/are attributable to a known clinical diagnosis. If the Veteran does not currently have, but previously had any such condition, when did that condition resolve? (b.) Please state whether the symptoms relating to the Veteran’s claimed respiratory condition is/are attributable to a known clinical diagnosis. If the Veteran does not currently have, but previously had any such condition, when did that condition resolve? (c.) With respect to each diagnosis determined or identified, determine whether it is at least as likely as not (50 percent probability or greater) that the diagnosed disease, disability or symptoms were: 1) an undiagnosed illness; or 2) medically unexplained chronic multisystem illness (MUCMI); or 3) diagnosable chronic multi-symptom illness with a partially explained etiology; or 4) is a disease with a clear and specific etiology and diagnosis). (d.) The examiner is informed that a MUCMI means a diagnosed illness without conclusive pathophysiology or etiology, characterized by certain overlapping symptoms and signs, and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. MUCMIs of partially understood etiology and pathophysiology will not be considered “medically unexplained.” See 38 C.F.R. § 3.317. (e.) With respect to each diagnosis, if the diagnosis is not considered a MUCMI, determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s respiratory condition began during or is etiologically related to the Veteran’s active duty service. (f.) The examiner must consider that the Veteran is presumed to have been exposed to toxins in the Southwest Asia Theater of Operations. The examiner must consider and discuss the Veteran’s lay statements regarding his duties during active service as well as his statements regarding the onset and continuity of symptoms. (g.) The examiner is also asked to address the Veteran’s medical treatment record to include the Veteran’s reported exposure to smoke from oil fires, trash fires, fumes from chemicals and fumes, nerve gas and pesticides in the October 1997 Gulf War examination assessment. 4. If and only if service connection is warranted for the Veteran’s claimed coronary artery disease, the examiner is asked to opine to the following: (a.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s obstructive sleep apnea is due to or caused by CAD. (b.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s obstructive sleep apnea is aggravated by CAD. “Aggravation” is defined as any worsening beyond the natural progression of the disability. The examiner should establish a baseline level of disability prior to aggravation. 5. The examiners are advised that the Veteran is competent to report in-service events and treatment, and his symptoms and history, and such reports and assertions must be specifically acknowledged and considered in formulating any opinions. If the examiners reject the Veteran’s reports, the examiners must provide a reason for doing so. (a.) A complete rationale for these opinions must be provided. Citation to accepted medical literature and principles would be of great assistance to the Board. If the examiner is unable to provide these opinions without resorting to speculation, he or she must explain why this is so. 6. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Yang, Attorney-Advisor 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.