Citation Nr: 21013848 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 18-23 080 DATE: March 10, 2021 ORDER Entitlement to service connection for obstructive sleep apnea as secondary to service connected PTSD is granted. REMANDED Entitlement to a rating in excess of 10 percent for left patellofemoral pain syndrome is remanded. Entitlement to a rating in excess of 10 percent for right patellofemoral pain syndrome is remanded. Entitlement to a rating in excess of 20 percent for lower back muscle pain is remanded. Entitlement to a rating in excess of 10 percent for a fracture in the right fourth finger is remanded. FINDING OF FACT The Veteran’s obstructive sleep apnea was caused or aggravated by his service connected PTSD. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea as secondary to service connected PTSD have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1990 to September 1999. This case comes before the Board from June 2017, March 2018, and August 2019 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). The Board denied the Veteran’s claims in an October 2019 decision, which the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). See Board decision, October 24, 2019. Pursuant to a September 2020 Order granting a Joint Motion for Remand (JMR), the Court vacated the Board’s decision and remanded the claims to the Board for action consistent with the terms of the JMR. See Order, September 22, 2020. The Board acknowledges that, in correspondence dated in January 2021, the Veteran’s attorney requested a 60-day extension until March 4, 2021, so that a medical opinion could be obtained and submitted. See attorney correspondence, received by VA January 5, 2021. Said medical opinion has been obtained and submitted to VA. See private opinion, received by VA January 13, 2021. The Board will therefore proceed with its adjudication. Service Connection The Veteran generally asserts that his obstructive sleep apnea is related to his active service. In the alternative, the Veteran asserts that his obstructive sleep apnea is secondary to his service-connected PTSD. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a). A disability may also be service connected on a secondary basis if it is proximately due to or the result of a service-connected disease or injury; or, if it is aggravated beyond its natural progress by a service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310(a), (b). The Veteran has a current diagnosis of obstructive sleep apnea. See Medical Opinion Disability Benefits Questionnaire (DBQ), February 24, 2019. The Veteran’s spouse submitted a statement that the Veteran had a severe snoring problem and that the Veteran’s snoring was so bad that they had to sleep in different rooms so that she can sleep. She related that, as a nurse, she had assisted him with trying different methods to alleviate his sleep apnea. The spouse stated that she married the Veteran in 1992, when he was still in active service, and that she observed his sleep apnea at the time of their marriage. See lay statement, received by VA January 8, 2010. Conflicting medical evidence exists regarding whether the Veteran's obstructive sleep apnea was due to the Veteran's service-connected PTSD. A July 2015 VA Examination was provided for the Veteran. The examiner opined that the Veteran's obstructive sleep apnea is less likely than not proximately due to or the result of the Veteran's PTSD. The examiner further stated that PTSD is not a risk factor for sleep apnea and cited size, weight, gender, upper respiratory obstruction at rest, and other medical issues (not including mental health conditions) as risk factors for sleep apnea. The examiner did not cite to any medical literature for their opinion. However, the examiner did not address whether the Veteran's sleep apnea is aggravated (increased in severity) beyond its natural progression by his service-connected PTSD and therefore cannot be afforded much probative weight. During a February 2019 VA examination, the Veteran was evaluated again to determine whether the Veteran's obstructive sleep apnea is at least as likely as not proximately due to or the result of the Veteran's service-connected PTSD. The Veteran reported having sleep disturbances while in the military. The examiner opined that the Veteran's obstructive sleep apnea is at least as likely as not related to the Veteran's PTSD as the Veteran did not have any sleep disturbances prior to entering the military. The examiner based their rationale on research studies showing that individuals with PTSD have an increased risk of developing sleep apnea. Specifically, the examiner noted a large percentage of Veterans with PTSD have co-occurring sleep disturbance such as obstructive sleep apnea, periodic leg movement disorders, sleep terrors, or nocturnal anxiety attacks. Studies indicate that there may be an increased prevalence of obstructive sleep apnea in individuals with major depressive disorder and PTSD. The examiner also did not apply the cited research studies to the Veteran's case. The examiner only stated that the Veteran did not have any sleep disturbances prior to entering the military. Upon separation of service, the Veteran did not indicate having issues sleeping and was not diagnosed with sleep apnea until 10 years after exiting service. However, the examiner did not address whether the Veteran's sleep apnea is aggravated (increased in severity) beyond its natural progression by his service-connected PTSD. Therefore this opinion is being afforded little, if any, probative weight. El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (holding that findings of "not due to," "not caused by," and "not related to" a service-connected disability are insufficient to address the question of aggravation under 38 C.F.R. § 3.310(b)). A clarification medical opinion was provided in July 2019. The examiner opined that the Veteran's obstructive sleep apnea was less likely than not proximately due to or the result of the Veteran's PTSD. The examiner based their rationale on research studies and noted that while there is a correlation between PTSD obstructive sleep apnea, the studies did not show or prove causation. The examiner noted that the Veteran's obesity is the most likely cause for his diagnosed obstructive sleep apnea. The examiner did not address whether the Veteran's sleep apnea is aggravated (increased in severity) beyond its natural progression by his service-connected PTSD. However, the examiner did not address whether the Veteran’s obstructive sleep apnea was aggravated by his service connected PTSD. Therefore, this opinion is being afforded little, if any, probative weight. Id. A January 2021 private opinion from Dr. S.B., a private physician, indicated that the Veteran’s obstructive sleep apnea was caused or aggravated by his PTSD as literature reviews indicated a link between PTSD and sleep apnea and showed that the risk of sleep apnea increases with the severity of the PTSD. The physician opined that it was as likely as not that the Veteran’s sleep apnea was secondary to his PTSD. See private opinion, received by VA January 13, 2021. The Board concludes that the proffered January 2021 opinion is adequate and entitled to significant probative weight, because it is based upon a highly detailed analysis of the Veteran's medical records throughout the appellate history of this claim. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2009); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion must support its conclusion with an analysis the Board can consider and weight against contrary opinion"). Specifically, the January 2021 private opinion adequately establishes a finding of secondary service connection, and specifically, that the Veteran's current diagnosis of obstructive sleep apnea has been aggravated by his service-connected PTSD. Finally, the Board notes in passing that even if the examiner's rationale might otherwise be characterized as inadequate for being insufficiently supported by medical literature or the evidence of record, the Board would then conclude that the evidence is at least in relative equipoise to support a finding of secondary aggravation, and that the Board is prohibited from remanding for the purpose of obtaining evidence against a claimant's case. See Mariano v. Principi, 7 Vet. App. 305, 312 (2003). Moreover, there are no other probative etiology opinions of record addressing secondary service connection on an aggravation basis. As such, the Veteran's claim of entitlement to service connection for obstructive sleep apnea is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Left and Right Patellofemoral Pain Syndrome The Veteran asserts that his left and right patellofemoral pain syndrome are worse than currently rated. The JMR noted that the February 2019 VA examiner stated that the Veteran complained of knee flare-ups, but that the examiner did not describe flare-ups in terms of range of motion for both knees. The JMR further noted that in May 2019, the same VA examiner, without reexamining the Veteran, submitted an addendum which stated the effect of his flare-ups in terms of degrees of decreased range of motion. The Court found this opinion inadequate because the May 2019 examiner simply estimated the range of motion for the knees, and did not state that the record was reviewed prior to the addendum. The Court concluded that a new examination was warranted for the Veteran’s bilateral knee disability. In addition, the Court noted that outstanding June 2017 cervical spine X-ray and 2017 magnetic resonance imaging (MRI) scan performed at Overton Brooks VA Medical Center (VAMC) must be obtained, as they are not part of the current record. A remand is warranted for an adequate examination. The Court has addressed what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. A VA examiner should, on remand, address any flare-ups claimed by the Veteran, per Sharp. The examiner should note that the Veteran did claim flare-ups during the February 2019 VA examination. 2. Lower Back Muscle Pain The Veteran asserts that his lower back muscle pain is worse than currently rated. The JMR noted that the February 2019 VA examiner stated that the Veteran complained of back flare-ups, but that the examiner did not describe flare-ups in terms of range of motion of the back. The JMR further noted that in May 2019, the same VA examiner, without reexamining the Veteran, submitted an addendum which stated the effect of his flare-ups in terms of degrees of decreased range of motion. The Court found this opinion inadequate because the May 2019 examiner simply estimated the range of motion for the back, and did not state that the record was reviewed prior to the addendum. The Court concluded that a new examination was warranted for the Veteran’s lower back muscle pain. A remand is warranted for an adequate examination. The Court has addressed what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. A VA examiner should, on remand, address any flare-ups claimed by the Veteran, per Sharp. The examiner should note that the Veteran did claim flare-ups during the February 2019 VA examination. 3. Right Ring Finger The JMR noted that the February 2019 VA examiner stated that the Veteran complained that the repetitive use of the finger over time resulted in a limitation of functional ability, and that the Veteran reported a loss in the range of motion with repetitive use. However, the examiner did not describe flare-ups in terms of range of motion of the right ring finger. A remand is warranted for an adequate examination. The Court has addressed what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. A VA examiner should, on remand, address any flare-ups claimed by the Veteran, per Sharp. The examiner should note that the Veteran did claim flare-ups during the February 2019 VA examination. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. Specifically, obtain the outstanding June 2017 cervical spine X-ray and 2017 MRI scan performed at Overton Brooks VAMC. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A (b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, forward the Veteran’s record to a qualified medical examiner to address the following questions as to the claims for an increased rating for left and right patellofemoral pain syndrome, lower back muscle pain and a fracture in the right fourth finger. The examiner must provide all findings, along with a complete rationale for the opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. (A) For the Veteran’s right and left knee, lumbar spine and right fourth finger, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. (B) To the extent possible, the examiner should identify any symptoms and functional impairments due to the low back disability, bilateral knee disability, and right ring finger disability, alone, and discuss the effect of the Veteran’s low back disability, bilateral knee disability, and right ring finger disability on any occupational functioning and activities of daily living. (C) If it is not possible to provide a specific measurement or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must 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), a deficiency in the record (additional facts are required), or whether it is due to the examiner not having the knowledge or training. (Continued on the next page)   All opinions should be provided with a rationale. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Lech, 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.