Citation Nr: 21010371 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 16-47 576 DATE: February 24, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea, to include as secondary to posttraumatic stress disorder (PTSD), bilateral hearing loss, and/or tinnitus is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1953 to June 1956 and from May 1959 to May 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an April 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office. This matter was previously before the Board in November 2017 and September 2020. The Board regrets the delay associated with this remand, especially considering that this matter was the subject of two previous remands. However, another remand is necessary to ensure that the Veteran is afforded full compliance with the statutory duty to assist. Entitlement to service connection for obstructive sleep apnea, to include as secondary to PTSD, bilateral hearing loss, and/or tinnitus is remanded. The Veteran is seeking service connection for a sleep disorder. He maintains that his obstructive sleep apnea is related to service and/or is secondary to his service-connected PTSD, hearing loss and/or tinnitus. See January 2021 Appellate Brief. In November 2017 the Board remanded the claim because the Veteran had not been afforded a VA examination for his claimed sleep disability after asserting his sleep disorder is worsening in an October 2013 correspondence. Further, during an October 2014 VA examination for PTSD, the examiner noted chronic sleep impairment as a symptom of his service-connected PTSD. The Veteran was subsequently provided with a VA examination in December 2017 where the VA examiner noted a diagnosis of obstructive sleep apnea and opined it is less likely that the Veteran has a service-connected condition that is related to sleep apnea. He stated he could find no event, exposure, nor evidence that the Veteran’s sleep apnea was aggravated beyond its normal progression. In an October 2019 addendum medical opinion Disability Benefits Questionnaire (DBQ) the VA examiner noted a diagnosis of obstructive sleep apnea and in his rationale stated the Veteran’s sleep apnea is likely further aggravated by PTSD, tinnitus or insomnia. Therefore, sleep apnea is less likely than not aggravated. In September 2020 the Board remanded the claim because the rationale provided by the December 2017 VA examiner is internally inconsistent and because the examiner did not address the Veteran’s report of sleep difficulty during service. The opinions also discuss whether sleep apnea caused or aggravated the Veteran’s PTSD or tinnitus which is not the question before the Board. In an October 2020 medical opinion, with respect to the theory of direct service connection, the examiner concluded although the Veteran had complaints of sleep issues in service, sleep apnea was not diagnosed until years after service therefore, it is less likely than not due to service. The Board finds this opinion to be inadequate based on an incomplete rationale. The examiner appears to dismiss in-service reports of injury and complaints of symptoms as contributing causes. The examiner further concludes that onset was not until much later simply because obstructive sleep apnea was not documented until 2008. However, the date of diagnosis of a disability is not determinative as to onset. Instead, it is only necessary to establish that a current disability exists. A later notation of obstructive sleep apnea in the Veteran’s file does not preclude a much earlier onset while in service. 38 C.F.R. § 3.303(d). Importantly, regarding the etiology of the Veteran’s diagnosed obstructive sleep apnea, the examiner stated insomnia due to ringing in the ears, sinusitis, shortness of breath are all vague complaints with multiple etiologies and opined because of the possible multiple etiologies he is not able to state these were manifestations of sleep apnea. A VA medical examination is not inadequate merely because the medical examiner states he or she cannot reach a conclusion without resort to speculation. See Jones v. Shinseki, 23 Vet. App. 382, 391 (2010). However, a VA examination is considered inadequate where the examiner fails to articulate “a reasoned explanation” of his conclusion that no opinion is possible without resort to mere speculation. Here, while the examiner states that because of the possible multiple etiologies he is not able to state these were manifestations of sleep apnea, he does not provide a reasoned explanation detailing the etiology of the Veteran’s sleep apnea, to include its relationship, if any, to the Veteran’s service-connected PTSD, hearing loss and/or tinnitus. Rather, he stated it is known in medical literature that these conditions do not cause sleep apnea directly. He opined at the time of the sleep study, the Veteran was technically overweight, and it is known that being overweight and obesity are majority factors in obstructive sleep apnea and therefore it is more likely obesity is the cause of obstructive sleep apnea. The examiner further stated studies show a positive correlation between PTSD and obstructive sleep apnea. However, he opined a direct causative or aggravation relationship is not established, although obstructive sleep apnea is a risk factor for PTSD, the reverse is not stated true. The examiner provided a URL link to an article highlighting medical research regarding sleep apnea and PTSD, “Study Finds High Risk of Sleep Apnea in Young Veterans with PTSD” but he did not explain or discuss this article. Further, the examiner did not provide any meaningful discussion of whether obstructive sleep apnea is worsened, to include beyond its natural progression, by PTSD, hearing loss and/or tinnitus other than saying aggravation is not established. An opinion addressing secondary service connection is inadequate if it does not address both causation and aggravation. As the examiner did not address the issue of aggravation of obstructive sleep apnea by the Veteran’s service-connected disabilities, the opinion regarding secondary service connection is also inadequate. See El-Amin v. Shinseki, 26 Vet. App. 136, 14041 (2013). Accordingly, a new opinion must be obtained before the Veteran’s sleep apnea claim can be properly adjudicated. The Board notes in a November 2020 PTSD DBQ the VA psychologist opined the veteran’s difficulties with sleep are dually impacted by insomnia and PTSD. The Veteran was granted service connection for insomnia disorder as secondary to his service-connected tinnitus and PTSD in a December 2020 rating decision by a decision review officer The matters are REMANDED for the following action: 1. Arrange for an appropriate health care provider to review the Veteran’s claims file and provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that obstructive sleep apnea had its clinical onset during service or is due to an event or incident of the Veteran’s period of active service. The examiner should also indicate whether it is at least as likely as not, (50 percent probability or greater), that the obstructive sleep apnea was (A) caused or (B) aggravated beyond its normal progression by the service-connected PTSD, bilateral hearing loss, and/or tinnitus. Aggravation means an increase in disability – any additional impairment of earning capacity – of the nonservice-connected disability. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the diagnosed disability prior to aggravation by the service-connected disability. If the reviewing health care provider finds that physical examination or telehealth interview of the Veteran and/or diagnostic testing is necessary, such should be accomplished. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner’s lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. After undertaking any additional development deemed appropriate and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran’s pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Aston, Associate 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.