Citation Nr: 21022841 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 19-08 322 DATE: April 19, 2021 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected post-traumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1962 to December 1982. This matter comes before the Board of Veterans Appeals (Board) on appeal from a March 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran contends that he is entitled to service connection for obstructive sleep apnea (OSA) due to military service, or as secondary to his service-connected PTSD. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131 (2018); 38 C.F.R. § 3.303 (2018). A Veteran seeking compensation under these provisions must establish three elements: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). This matter was remanded by the Board in June 2020 for a VA examination, and a medical opinion concerning direct and secondary service connection. The Veteran is diagnosed with obstructive sleep apnea. See July 2020 VA examination. Therefore, the first element of service connection, a present disability, has been met. Next, the Veteran reported that his sleep problems started after he got back from Vietnam in 1971. Based on this lay statement, the second element for service connection is met. In the July 2020 medical opinion, the examiner opined that the condition claimed was less likely than not (less than 50% probability) proximately due to, or the result of the claimed in-service injury, event, or illness. The rationale was that there is no medical evidence that military service on its own would precipitate sleep apnea. The examiner noted that the Veteran was diagnosed with obstructive sleep apnea following a sleep study in February 2012 and that the Veteran has several risk factors, such as obesity, which is the most common cause of obstructive sleep apnea. This medical opinion is highly probative because it was based upon a thorough review of the claims file, medical literature, an interview with the Veteran, and a well-reasoned rationale. The Board finds this opinion to be factually accurate, fully articulated, and containing sound reasoning. A medical opinion that is factually accurate, fully articulated, and based on sound reasoning carries significant weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). After review of all the lay and medical evidence of record, the Board finds that the evidence weighs against entitlement to service on a direct basis. Service connection may not be granted on a direct basis; however, the Veteran contends that his OSA may be secondary to his service-connected PTSD. Secondary service connection Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). As noted above, the first element of service connection, a current disability is met. Next, he is service connected for PTSD. The second element of service connection on a secondary basis is also met. However, the third element, a medical nexus, must be resolved. As directed by the June 2020 Board remand, a VA examiner was asked to opine whether it is at least as likely as not (50 percent or greater probability), that the currently diagnosed sleep apnea is aggravated by service-connected PTSD. In an October 2020 addendum opinion, the examiner opined that the condition claimed was at least as likely as not aggravated beyond its natural progression by the Veteran’s service-connected PTSD. The rationale is that the Veteran was on 1.5 liters of nocturnal oxygen in April 2013 and then was documented as being on 4 liters of nocturnal oxygen in December 2019. The examiner attributes the increased manifestations of sleep apnea to the Veteran’s PTSD. There was no discussion as to why the increased manifestations are due to PTSD as opposed to any other condition or risk factor. An additional addendum opinion was obtained in December 2020 in which a separate VA examiner provided an opinion of secondary service connection due to aggravation by service-connected disabilities. The examiner opined that the Veteran’s sleep apnea has not been aggravated beyond its natural progression. The rationale is that the Veteran has only participated in one sleep study, which was noted as sub-optimal and inconclusive. The Veteran was assessed as having mild sleep apnea, and an August 2014 CPAP titration documents AHI 4.3. The examiner stated that a sleep study is the medically accepted objective measure by which to measure the severity of sleep apnea. The examiner disagreed with the October 2020 opinion because using nocturnal oxygen is not a medically accepted standard by which to measure the severity of sleep apnea. The Board finds that a remand is required for two reasons. One, the December 2020 examiner referenced hypertension as the service-connected disease in question. The Veteran, and the June 2020 Board remand specifically mentioned PTSD, not hypertension. as potentially aggravating sleep apnea beyond its natural progression. Secondly, the Veteran should be afforded a sleep study to accurately determine whether an increase in severity of sleep apnea occurred. The record contains correspondence from September 2020 in which the Veteran indicated he does not wish to attend any more VA examinations, and that he would like VA to use the current sleep study of record. Another correspondence, from February 2021, clarifies the earlier correspondence. The Veteran stated that he indeed does want to attend a VA exam, but is not comfortable attending a sleep study exam until the COVID-19 pandemic is over. The matter is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the current nature and etiology of the Veteran’s claimed sleep apnea condition. The examination should be scheduled after such time that the Veteran feels comfortable and safe attending. The claims folder and a copy of this Remand must be made available to the examiner. All necessary tests should be conducted, and the examiner should review the results of any testing prior to completion of the report. 2. Following a full review of the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s sleep apnea is aggravated by his service-connected PTSD. For any aggravation found, the examiner should state, to the best of his or her ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. (a.) The examiner should attempt to reconcile any conflicting evidence of record, especially the medical opinions of the July 2020 examiner, and the addendum opinions of October 2020 and December 2020. The examiner must review and discuss the evidence of record and provide an opinion supported by adequate reasons and bases. (Continued on the next page)   A complete rationale must be provided for all opinions offered. If any opinion cannot be offered without resorting to mere speculation, the examiner must fully explain why this is the case and identify what, if any, additional evidence would potentially allow for a more definitive opinion. The Appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Nelson, 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.