Citation Nr: 21009942 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 19-04 894 DATE: February 23, 2021 ORDER 1. To the extent that it denied the Veteran service connection for a sleep disorder, to include as secondary to posttraumatic stress disorder (PTSD), the September 16, 2019 decision by the Board is vacated. REMANDED 2. Entitlement to service connection for a sleep disorder, to include as secondary to PTSD, is remanded. FINDINGS OF FACT 1. On September 16, 2019, the Board issued a decision denying (in part) service connection for a sleep disorder, to include as secondary to PTSD, on the basis that the record did not include competent evidence that the Veteran has a (separate from his service-connected PTSD) sleep disorder. 2. Subsequently, the Board discovered that competent (medical) evidence of a diagnosis of obstructive sleep apnea (OSA) was received prior to the issuance of the September 16, 2019 Board decision, but was not considered therein. CONCLUSION OF LAW A vacate of the Board’s September 16, 2019 decision, to the extent that it denied service connection for a sleep disorder, is warranted. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is a Veteran who served on active duty from November 1973 to December 1974, and from October 1979 to October 1982. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision. A September 16, 2019 Board decision, in relevant part, denied service connection for a sleep disorder, to include as secondary to PTSD. 1. Vacatur Order The Board of Veterans’ Appeals (Board) may vacate an appellate decision at any time upon request of the appellant or his representative, or on the Board’s own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904. A September 16, 2019 Board decision, in part, denied the Veteran service connection for a sleep disorder, to include as secondary to PTSD, on the basis that the record did not include competent evidence that the Veteran has a (separate from his service-connected PTSD) sleep disorder. In October 2019, the Veteran’s attorney submitted a Motion to Reconsider the September 16, 2019 Board decision, and argued that the record contains a diagnosis of OSA and a positive nexus opinion (in support of a secondary service connection theory of entitlement). Subsequently, the Board discovered that competent evidence of a diagnosis of OSA was received prior to September 16, 2019, but was not been considered in the Board decision then issued. Therefore, at the time of the September 16, 2019 Board decision, due process was not accorded to the Veteran. See 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904 (a)(2). Consequently, and acknowledging the Motion to Reconsider filed by the Veteran’s attorney in October 2019, the Board has decided to vacate the decision in part, to the extent that it denied service connection for a sleep disorder. Under 38 U.S.C. § 7252, only a final decision of the Board is appealable to the United States Court of Appeals for Veterans Claims (CAVC). This vacatur is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b). REASONS FOR REMAND 2. Entitlement to service connection for a sleep disorder, to include as due to PTSD Following the Vacatur Order, above, the matter of entitlement to service connection for a sleep disorder remains for consideration. The record contains competent evidence of a diagnosis of OSA. See May 2018 private polysomnogram report (noting a diagnosis of mild OSA) and August 1, 2018 VA treatment record (noting use of home positive airway pressure (PAP) therapy); see also April 15, 2019 private sleep apnea DBQ. What remains for consideration is whether the OSA is etiologically related to his service or secondary to his service-connected PTSD. The Veteran’s attorney contends his OSA is secondary to his service-connected PTSD. In support of such theory, he points to an April 2019 opinion by Dr. M.B (the physician who also completed the April 15, 2019 sleep apnea DBQ). See October 2019 Motion for Reconsideration. She interviewed the Veteran via telephone, reviewed the record, and opined “the [V]eteran’s PTSD and anti-depressant (Sertraline) more likely than not caused his OSA and his mental health symptoms have caused an aggravation of his OSA due to his inability to use his [CPAP] mask.” The Board finds the opinion inadequate for rating purposes, as the rationale for the opinion provided is inadequate. Specifically, Dr. M.B. wrote, “Research has shown that anti-depressants have been known to cause secondary effects on sleep.” Such statement does show a causative relationship between PTSD medication and obstructive sleep apnea. Furthermore, the opinion regarding aggravation does not establish (via medical evidence) a baseline level of severity of OSA (prior to any alleged aggravation) as required by 38 C.F.R. § 3.310. Accordingly, remand for an adequate advisory medical opinion is necessary. The matter is REMANDED for the following: 1. Obtain all outstanding (updated to the present) records of VA evaluations and treatment the Veteran has received for a sleep disorder (including OSA) and sleep complaints. Also ask the Veteran to identify all private providers of evaluations or treatment he has received for his claimed sleep disorder (records of which are not already in the record) and to submit authorizations for VA to secure for the record complete clinical records of all such evaluations and treatment. Obtain those records. 2. Thereafter, arrange for a sleep apnea examination of the Veteran to determine the most likely etiology of his diagnosed OSA. The Veteran’s entire record (including this remand) must be reviewed by the examiner in conjunction with the examination. On examination/interview of the Veteran and review of his record, the examiner should respond to the following: (a) Identify the likely etiology for the Veteran’s diagnosed OSA. Is it at least as likely as not (a 50% or greater probability) that it was incurred or aggravated during the Veteran’s active service? (b) If the answer to (a) is No, is it at least as likely as not that the diagnosed sleep disorder was caused or aggravated by (increased in severity due to) his service-connected PTSD, including specifically the medication prescribed for such? [The opinion must encompass aggravation.] The rationale for this opinion should include: - comment on (express, with rationale, agreement or disagreement with) the April 2019 medical opinion by Dr. M.B., including the explanation that the Veteran’s PTSD results in inability to use his CPAP machine mask, which aggravates the effects of sleep apnea; and, - comment on a medical journal article (received in October 2019) indicating that sleep apnea is associated with a higher prevalence of psychiatric comorbid conditions in VHA beneficiaries. (c) If the Veteran’s sleep disorder is determined to not have been caused, but to have been aggravated by his service-connected PTSD, identify the baseline severity of the sleep apnea prior to its aggravation by PTSD and the level of severity of the sleep apnea following aggravation. The examiner must include rationale with all opinions, commenting on the textual evidence that has been submitted, and citing to supporting factual data and/or medical principles, as deemed appropriate. [If an opinion sought cannot be provided without resort to speculation, it must be so stated for the record, with explanation why that is so.] GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dupont, 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.