Citation Nr: 21024678 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 11-30 767 DATE: April 23, 2021 ORDER The claim for service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected posttraumatic stress disorder (PTSD), is granted. REMANDED The claim for hypertension, to include as a result of herbicide exposure or as secondary to the Veteran’s service-connected PTSD, is remanded. FINDING OF FACT The evidence is in relative equipoise as to whether the Veteran’s sleep apnea was caused or aggravated by his service-connected PTSD. CONCLUSION OF LAW The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 5107; 38C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1967 to June 1969, to include service in the Republic of Vietnam. He was awarded the Purple Heart and Combat Infantryman Badge among other awards. This matter is on appeal from a February 2009 and a May 2014 rating decision. This claim was previously before the Board in August 2016 and February 2019, at which times it was remanded for further development to include obtaining VA treatment records and VA examinations/medical opinions. This claim has now returned to the Board for further appellate action. Of note, the August 2016 Board decision also remanded the Veteran’s claim for a rating in excess of 50 percent for his service-connected PTSD. In January 2020, the Board issued a separate decision denying this claim for a higher PTSD rating. Thus, this issue is no longer on appeal before the Board. The Veteran testified before the undersigned Veterans Law Judge in May 2016 and the transcript is associated with the claims file. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110, 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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 (nexus). Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection can also be established on a secondary basis for a disability which is proximately due to, or the result of a service-connected disability. 38 C.F.R. § 3.310. 1. The claim for service connection for obstructive sleep apnea (OSA), secondary to service-connected PTSD, is granted. The Veteran claims that his OSA is caused/aggravated by his service-connected PTSD. See Notice of Disagreement received August 2012 (NOD). The Veteran submitted medical literature discussing a relationship between OSA and PTSD. However, the May 2018 VA examiner did not address this literature. See “Journal of Clinical Sleep Medicine: OSA and PTSD among Veterans” of record. As such, in February 2019 the Board remanded the Veteran’s claim for a VA medical opinion considering the Veteran’s submitted literature. The Veteran completed a November 2013 sleep study at a VAMC which led to the diagnosis of obstructive sleep apnea (OSA). The Veteran is currently service connected for PTSD and depression. The post-service VA treatment records show treatment for his OSA, to include a prescribed Continuous Positive Airway Pressure (CPAP) therapy. Upon review of the record, a VA examiner opined in April 2020 and June 2019 that the Veteran’s OSA is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service-connected PTSD. The rationale provided was that the known causes of OSA include overweight/obesity (most common cause), male sex, smoking, congestion, and/or family history. The examiners reviewed the literature submitted by the Veteran and the June 2019 examiner reported that there is no evidence, or current literature that provides a connection between these two conditions. The examiners found that the study is insufficient in showing a relationship in that the sample size was only of 195 Veterans. The April 2020 VA rationale added that the study referenced by the Veteran’s literature had many limitations, most notably is that the measurement tool used has not been validated in the PTSD population. This examiner concluded that this study is important for future research, but it is not sufficient to establish a relationship between PTSD and OSA. Both examiners noted that there is no evidence to show that the OSA has been aggravated. In support of his claim that his current OSA condition is secondary to his service-connected PTSD, the Veteran submitted a positive private nexus opinion from M. S., MD. Dr. M.S. opined that given the Veteran’s history of PTSD, it is as least as likely as not that the Veteran’s sleep apnea is the result of his PTSD, and that his sleep apnea is therefore, service connected. Dr. M.S. stated that his opinion is based on diligent review of the medical literature on these conditions, training, experience, and review of the relevant records. In support of the opinion, Dr. M.S.’s rationale included discussion of several articles and literature with detailed citations. He reported that extensive study in the medical literature regarding the correlation between OSA and PTSD has been documented. For example, Dr. M.S. reported that one study found that sleep was more fragmented in patients with PTSD, with more awakenings in the first half of the night. In addition, he cited to another article that found that overall, PTSD subjects had a decreased percentage of slow wave sleep relative to controls, which may also explain their increased arousals during the first half of the night. Further, Dr. M.S. opinion considered the study involving 195 Veteran’s submitted by the Veteran and discussed by the VA examiners. Dr. M. S. concluded that the study showed a high risk for sleep apnea and that this risk increased with PTSD symptom severity. Dr. M.S. concluded that medical literature unquestionably provides a nexus between the diagnosis of PTSD and OSA. The Board finds that the evidence of record is at least in relative equipoise as to whether the Veteran’s sleep apnea was caused by his service-connected PTSD. Accordingly, service connection for a sleep apnea is granted. REASONS FOR REMAND 2. The claim for hypertension, to include as a result of herbicide exposure or as secondary to the Veteran’s service-connected PTSD, is remanded. The Veteran contends that herbicide exposure caused his hypertension, or his PTSD caused/aggravated it. The Veteran is currently diagnosed with hypertension (HTN). Of note, VA verified the Veteran’s Vietnam service, and he is presumed to be exposed to herbicide agents during his active military service under 38 C.F.R.§ 3.307 (a)(6). See August 2016 Board decision. In the May 2018 medical opinion, the VA examiner opined that the Veteran’s HTN is less likely as not due to herbicide exposure. The rationale for the opinion provided by the examiner, referenced “Veterans and Agent Orange: Update 2010” which states that they continue to categorize hypertension as having limited or suggestive evidence. The examiner found that limited or suggestive falls well below the standard of at least as likely as not. While, HTN is not listed as a disease associated with exposure to herbicides. 38 C.F.R. § 3.309 (e). It is worth noting that the National Academies of Sciences, Engineering, and Medicine in its most recent Agent Orange update moved hypertension from limited or suggestive of an association between hypertension and herbicide exposure to sufficient evidence of an association. See “Veterans and Agent Orange: Update 11 (2018).” The update 11 reflects that the standard for this new category is epidemiologic evidence sufficient to conclude that there is a positive association. That is, a positive association has been observed between exposure to herbicides and the outcome in studies in which chance, bias, and confounding could be ruled out with reasonable confidence. For example, if several small studies that are free of bias and confounding show an association that is consistent in magnitude and direction, there could be sufficient evidence of an association. Further, there is sufficient evidence of an association between exposure to the chemicals of interest and hypertension. While this finding does not mandate the grant of service connection, as hypertension is not an Agent Orange presumptive at this time, the Update 11 (2018) findings should nevertheless be considered by a medical professional as they pertain to the specifics of the Veteran’s case. The matters are REMANDED for the following action: 1. Obtain a medical opinion addendum to determine the etiology of the Veteran’s hypertension. If the Board's questions cannot be answered without a physical examination, one should be scheduled. The examiner should answer the following questions: Is it at least as likely as not (50 percent or greater) that the Veteran’s hypertension was caused by his presumed exposure to herbicide agents during service? Why or why not? In so doing, the examiner should discuss the relevance, if any, of the findings of the National Academies of Medicine which concluded that there was sufficient evidence of an association between exposure to herbicide agents and hypertension. See Veterans and Agent Orange; Update 11 (2018). The examiner should provide a rationale and basis for all opinions expressed. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Franklin, 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.