Citation Nr: 21025900 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 16-32 924 DATE: April 29, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran had active duty service from January 1987 to March 1994. He also had a period of active duty for training (ACDUTRA) from June 2006 to October 2006. In November 2018, the Veteran’s claim was remanded by the Board. At that time, the Board determined that the Veteran’s claim for a sleep disorder was inextricably intertwined with his claim for PTSD which was also remanded. The Board notes that the record reflects that the Veteran has diagnoses and corresponding VA opinions for both sleep apnea and insomnia. As these appear to be separate disabilities, the Board has recharacterized the Veteran’s claim as entitlement to service connection for sleep apnea rather than the previous general entitlement to service connection for a sleep disorder. Further, the Board notes that the Veteran’s claim for entitlement to service connection for insomnia was granted in a January 2021 rating decision as part of his diagnosis of major depressive disorder with generalized anxiety disorder and insomnia. Therefore, as this is a full grant of benefits, the issue is no longer before the Board. 1. Entitlement to service connection for sleep apnea is remanded. The Veteran contends that he has a sleep condition that is secondary to his service-connected disabilities. The record reflects that the Veteran has both insomnia, which has been service-connected, and sleep apnea. In October 2020, a VA examiner determined that the Veteran’s sleep apnea was less likely than not proximately due to or the result of the Veteran’s service-connected conditions. The examiner reasoned that the Veteran was diagnosed with obstructive sleep apnea which was caused by the physical obstruction of the airway during sleep. He explained that that process is typically related to obesity, increased neck mass, increased tonsil size, history of asthma, and upper airway congestion. The examiner found that the Veteran’s sleep apnea condition was less likely than not related to his service-connected conditions of coronary artery disease associated with hypertension, painful scars, or hypertension because: 1) the Veteran had a minimally invasive CABG surgery in 2010, which only included about a 10 centimeter scar around his left nipple, a 2 by 2 centimeter scar on his mid chest, and a linear scar on his legs, and an unremarkable physical examination where all scares were stable. There was no evidence through history of physical examination that the Veteran’s thoracic scars would contribute to physical obstruction or restriction of the airways during sleep; 2) lower extremity scars would not be contributory to airway obstruction during sleep, and lower extremity scars would not cause a physical obstruction of the airway as there would be no mechanism by which a lower extremity scar would obstruct the airway during sleep; 3) hypertension does not cause obstructive sleep apnea but is likely rather a symptom of sleep apnea; additionally, hypertension, which is elevation of blood pressure, would not contribute to the physical obstruction of the airway during sleep; and 4) CAD does not cause obstructive sleep apnea, as it is a vascular issue of the coronary arteries that causes occlusion and hardening of the coronary blood vessels, and would not contribute to the physical obstruction of the airway during sleep. In a January 2021 opinion from the same examiner, the examiner found that the Veteran’s sleep apnea was less likely than not due to or aggravated by his service-connected mental illnesses. The examiner reasoned that sleep apnea is caused by the physical obstruction of the airways during sleep, which is typically related to obesity, increased neck mass, increased tonsil size, history of asthma, and upper airway congestion. He noted that though there was some correlation between the prevalence of sleep apnea in those with mental health disorders, there was no evidence of causation. Psychiatric conditions, such as the Veteran’s service-connected major depressive disorder, insomnia, and generalized anxiety, would not contribute to the physical obstruction of the airway during sleep. The Veteran’s sleep apnea condition was not aggravated beyond its natural progression by his service-connected depressive disorder, insomnia, and generalized anxiety disorder. The examiner also determined that after determining the baseline level of severity of the Veteran’s sleep apnea, the Veteran’s current severity was not greater than the baseline. As such, there was no aggravation of the condition. Unfortunately, while the examiner opined as to causation and aggravation of the Veteran’s sleep apnea with regard to his mental illnesses, in the examiner’s October 2020 opinion, the examiner did not provide a separate aggravation opinion regarding scarring, hypertension, and coronary artery disease. See 38 C.F.R. § 3.310 (b); Allen v. Brown, 7 Vet. App. 439 (1995). Therefore, the Board finds that clarification opinion should be obtained regarding the etiology of the Veteran’s sleep apnea since VA must ensure the adequacy of a VA examination and opinion. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion concerning the etiology of the Veteran’s sleep apnea. All relevant evidence, including a complete copy of this remand, must be reviewed by the examiner. The examiner should provide opinions on the following: (a.) Is it at least as likely as not (a 50% or better probability) that the Veteran’s sleep apnea is caused OR aggravated by his service-connected disabilities, to include scarring, hypertension, and coronary artery disease associated with hypertension? *The examiner must also remain mindful that a recent precedent case clarified that secondary service connection does not require “permanent” worsening of the condition being claimed by the service-connected disability and requires considering whether there has been any worsening, no matter how incremental, so even if not above and beyond the condition’s natural progression. See Ward v. Wilkie, 31 Vet. App. 233 (2019). JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Vosburgh, 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.