Citation Nr: 21008824 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 13-20 486 DATE: February 18, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) as secondary to service-connected post-traumatic stress disorder (PTSD) is remanded. Introduction The Veteran served honorably on active duty in the United States Army during the Vietnam Era, from July 1966 to July 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 Rating Decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Veteran appeared and testified before the undersigned Veterans Law Judge (VLJ) at a hearing held in December 2016. A transcript of the hearing is of record. In June 2018, the United States Court of Appeals for Veterans Claims (Court) issued an Order remanding the matter pursuant to an agreed upon Joint Motion for Remand (JMR). The Board subsequently issued a January 2019 decision remanding the matter for additional development pursuant to the JMR. Following the additional development, in November 2020 the RO issued a Supplemental Statement of the Case (SSOC) again denying the Veteran’s claim. As such, the matter returns to the Board for further appellate review. The Board observes that the Veteran submitted a Decision Review Request: Higher-Level Review (VA Form 20-0996) in December 2020, albeit without checking the SSOC opt-in box. However, as the RO did not accept the VA Form 20-0996 as an opt-in to the Appeals Modernization Act (AMA) system of review, this matter remains pending in the Legacy system. While further delay is regrettable, remand for additional development is necessary to ensure that the Veteran receives all consideration under the law. Finally, this appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). REASONS FOR REMAND Entitlement to service connection for OSA as secondary to service-connected PTSD is remanded. As an initial matter, pursuant to the Board’s January 2019 remand, treatment records from LVHCS dated December 2010 and SDVAMC dated April 2007 through October 2020 are now associated with the Veteran’s claims file. However, in his Informal Hearing Presentation dated January 2021, the Veteran’s representative acknowledged that, “[t]he RO obtained the health care note referenced by the Board but the records in question are not germane to the issue.” For the following reasons, the Board finds the medical opinions of record are inadequate for purposes of determining service connection. Dr. M.S. authored a narrative opinion in October 2013 wherein he stated that, “[a]ccording to the medical literature, sleep disorders are an integral part of the syndrome of PTSD.” According to Dr. M.S., “in [his] medical opinion, [the Veteran’s] sleep apnea … more likely than not aggravates his service-connected PTSD.” However, while the opinion suggests a relationship by stating that OSA aggravates the Veteran’s service-connected PTSD, it does not indicate that OSA is due to, related to, or aggravated by service-connected PTSD. In March 2014, the Veteran’s claims file was reviewed by a VA examiner, who reported in an OSA Disability Benefits Questionnaire (DBQ) that the Veteran’s OSA was based upon “sleep studies from 1998.” However, the Board notes that no such sleep studies are of record and, instead, the evidence indicates the Veteran was not diagnosed with OSA until September 2012. Further, the VA examiner’s notation that the Veteran did not require continuous medication to control a sleep disorder condition is contrary to the medical treatment evidence, which reveals the Veteran has been prescribed medications for a sleep disorder as far back as February 2010. Moreover, the VA examiner’s statement that, “[c]ertainly, there is an interaction; PTSD disrupts sleep, [OSA] disrupts sleep, so logically, an individual is worse when having both conditions than if only having one but not in a causal sense” suggests one condition may aggravate the other, a consideration not explicitly addressed in the opinion. The VA examiner also reported that, “one could argue that pschotrophic [sic] meds cause drowsiness and thereby exacerbate [OSA] but the [V]eteran has not made this claim.” The Board finds she should have considered this possibility, regardless whether the Veteran specifically argued such. The Board is also not persuaded by the VA examiner’s statement that, “[t]he cause of [OSA] is uncertain and multifactorial,” followed by cursory references to the Veteran’s age, “large tonsils,” and weight (i.e., “not obese, he is overweight”), which appears no more than speculative in nature. Finally, another VA examiner reviewed the Veteran’s claims file and authored a narrative opinion in June 2017. The VA examiner noted that, “[a]lthough [OSA] prevalence is increased in patients with psychiatric disorder [sic] such [sic] PTSD and depression based on recent non-randomized studies,” he further stated that, “[t]hese findings do not rise to the level of causality.” The VA examiner’s opinion is contradictory as it acknowledges a medical study of record “may indicate association between PTSD and OSA but does not prove or demonstrate causality.” The Board finds the VA examiner’s negative nexus opinion lacks clear and definitive rationale supported by references to the pertinent evidence of record and, instead, focuses heavily on discounting the medical studies submitted by the Veteran based upon the perceived methodologies employed. The VA examiner also did not address the issue of whether OSA is aggravated by service-connected PTSD. Based upon the foregoing, the Board finds that remand is again necessary to afford the Veteran an in-person VA examination followed by an adequate medical opinion addressing whether the Veteran’s OSA is due to, related to, or aggravated by his service-connected PTSD. Accordingly, this matter is REMANDED for the following action: 1. Schedule the Veteran for an in-person VA medical examination with a physician, other than Drs. M.B.M. and I.S.-A., possessing the necessary expertise to fully assess and provide an opinion regarding the nature, severity, and likely etiology of the Veteran’s OSA, including as due to service-connected PTSD. The examiner must obtain a full history from the Veteran. It should be noted the Veteran is competent to attest to factual matters of which he has first-hand knowledge, such as observable symptomology. All pertinent symptomology must be reported in detail. Based upon a review of all pertinent evidence in the Veteran’s claims file, including medical records, lay statements, and the examination results, the examiner must opine as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran’s OSA is proximately due to, related to, or aggravated by service-connected PTSD. In offering the above opinion(s), the examiner must consider and discuss as necessary all pertinent lay and medical evidence of record including, but not limited to, the numerous medical literature articles regarding a relationship between PTSD and OSA submitted by the Veteran. A complete and thorough rationale for any opinion(s) expressed must be provided. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Worsham, 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.