Citation Nr: 21020873 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 16-22 413 DATE: April 8, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1966 to August 1970. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this claim in November 2019 to obtain a VA examination and medical opinion, which were provided in December 2019. The RO issued a Supplemental Statement of the Case in August 2020, and the matter now returns to the Board for further adjudication. 1. Entitlement to service connection for obstructive sleep apnea is remanded. The Veteran seeks service connection for obstructive sleep apnea. He primarily asserts that sleep apnea is secondary to his service-connected posttraumatic stress disorder (PTSD). Alternatively, he argues through his attorney that sleep apnea was caused by obesity, which in turn was caused by his service-connected disabilities or medications taken for the service-connected disabilities. Specifically, he argues that the service-connected type II diabetes mellitus and coronary artery disease are associated with weight gain, and that his prescribed sertraline is also associated with weight gain. See, e.g., September 2019 Remarks to SOC. A remand is necessary because the evidence is not clear whether the Veteran currently has obstructive sleep apnea. The Board remanded this claim in November 2019 to provide a VA examination and obtain a medical opinion regarding the etiology of the claimed sleep apnea. The examiner was asked to determine: (i) whether the Veteran’s service-connected disabilities or medication prescribed for them at least as likely as not cause his obesity; (ii) if so, was the obesity caused by his service-connected disabilities or medication prescribed for them at least as not a substantial factor in causing his obstructive sleep apnea; and (iii) would the obstructive sleep apnea not have occurred but for the obesity caused by the service-connected disabilities or prescribed medications. See November 2019 remand instructions. The examination and opinion were obtained in December 2019. The examiner determined that the Veteran does not have sleep apnea, citing a May 2012 VA sleep study. We note that the examiner also determined it was less likely than not that the Veteran’s service-connected disabilities or medications prescribed for them caused his obesity. There is conflicting evidence regarding whether the Veteran has sleep apnea. The May 2012 sleep study the examiner cited shows the Veteran was referred for assessment of suspected sleep-disordered breathing following reports of loud snoring, awakenings with gasping or choking, witnessed cessation of breathing, and excessive sleepiness. Although the Veteran slept very poorly during the evaluation, the report shows he did not have sleep apnea on the night of the study. He was diagnosed with sleep apnea in October 2013 by Dr. A.P., a VA sleep medicine specialist. Dr. A.P. noted the May 2012 polysomnogram did not show obstructive sleep apnea but assessed sleep apnea, explaining that the Veteran had insomnia and suspected sleep disordered breathing. At a December 2013 followup Dr. A.P. noted that the Veteran had obstructive sleep apnea and continued to snore   and have witnessed apneas. Furthermore, a June 2014 VA sleep study shows the Veteran was referred for positive airway pressure (PAP) titration for sleep-disordered breathing, and that PAP therapy was recommended as treatment for the Veteran’s sleep-related breathing disorder. These records pre-date the December 2019 opinion by several years and were not addressed by the examiner. VA treatment records show that Veteran underwent a sleep study through the VA Choice First Program in January 2015 that showed no sleep disordered breathing. He was again assessed with obstructive sleep apnea at a June 2016 VA sleep medicine appointment, although the treating physician noted multiple sleep studies showing no sleep disordered breathing. More recent VA treatment records report a diagnosis of obstructive sleep apnea. The most recent VA treatment records associated with the claims file are from January 2018. Given the above, the evidence is not clear as to whether the Veteran has had obstructive sleep apnea during the appeal period. Sleep studies suggest not, yet the Veteran’s doctors subsequently diagnosed sleep apnea and maintained the diagnosis until at least January 2018. On remand, the examiner will be asked to clarify whether the Veteran has had obstructive sleep apnea or sleep disordered breathing during the appeal period. Additionally, all outstanding VA treatment records must be obtained. Furthermore, if the Veteran does currently have sleep apnea, it would be appropriate to request an opinion as to whether the obstructive sleep apnea is secondary to his service-connected PTSD. No VA opinion has been provided regarding whether sleep apnea (if diagnosed) is proximately due to or aggravated by service-connected disease or injury. However, the July 2019 Statement of the Case (SOC) contains the following statement: Obstructive sleep apnea occurs due to passive collapse of the oro and/or nasopharynx during inspiration while asleep. It is caused by anatomical abnormalities such as obesity, redundant tissue in the soft palate, enlarged tonsils or uvula, low soft palate, large or posteriorly located tongue), as well as neuromuscular disorder. Of these conditions, obesity is the most common cause. Due to the absence of a cause and effect relationship, it is unlikely that your obstructive sleep apnea is proximately due to or the result of your PTSD. It is unclear where this opinion originates. When the July 2019 SOC was issued, VA had not yet obtained a medical nexus opinion for sleep apnea from an appropriate clinician. The opinion appears to have been provided by the Decision Review Officer who wrote the July 2019 SOC. The Board may not substitute its own judgment for that of a medical professional’s in determining the nature of a Veteran’s disability. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). It stands to reason that the RO must also refrain from substituting its own judgment for that of a medical professional when addressing etiology of a claimed disability. As such, if the Veteran is found to have had sleep apnea during the period on appeal, adequate opinions as to whether the sleep apnea is due to or aggravated by the Veteran’s PTSD must be obtained. The matters are REMANDED for the following action: 1. Associate any outstanding VA treatment records with the file. 2. Obtain a new examination for sleep apnea. The complete, updated claims folder must be provided ot the examiner for review. The examiner is asked to clarify whether the Veteran currently has or has had sleep apnea at any time during the appeals period. The examiner should explain the basis of any conclusion that is reached. It is suggested that the examiner explain the basis for reaching a valid diagnosis and why other diagnoses are either supported or not supported. 3. If the Veteran has sleep apnea, obtain an addendum opinion as to whether it is at least as likely as not (50 percent or greater probability) that the sleep apnea is proximately due to, the result of, or aggravated beyond its natural progression by, the Veteran’s service-connected PTSD. If there is aggravation, a baseline should be provided. 4. If the Veteran has sleep apnea, obtain an addendum opinion as to obesity as an intermediate step between obstructive sleep apnea and the Veteran’s service-connected disabilities. The examiner must address each of the following questions: a. Is it at least as likely as not (50 percent or greater probability) that the Veteran’s service-connected disabilities, to include type II diabetes mellitus, coronary artery disease, and PTSD, or any medications prescribed to treat his service-connected disabilities, caused the Veteran to become obese or aggravated obesity? It is requested that the examiner explain the impact of caloric intake on weight gain and such relationship, if any, to service-connected disease or injury. b. If so, was it at least as likely as not (50 percent or greater probability) that the resulting obesity was a factor in causing the Veteran’s obstructive sleep apnea?   c. If so, but for the service connected conditons, would the Veteran have developed obstructive sleep apnea? H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morse 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.