Citation Nr: 21026722 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 19-37 234 DATE: May 3, 2021 REMANDED Entitlement to service connection for sleep apnea as secondary to service-connected human immunodeficiency virus (HIV) is remanded. REASONS FOR REMAND The Veteran had active duty service from March 1995 to March 1999 and from September 2000 to February 2001. This appeal comes to the Board of Veterans' Appeals (Board) from a rating decision, dated May 2018, issued by a Department of Veterans Affairs (VA) Regional Office. The Veteran timely appealed. The appellant testified at an April 2021 video hearing with the undersigned Veterans Law Judge. This decision is being made under the "one-touch" program as it remands the benefit sought. A transcript of the hearing will be associated with the claims file at a later time. Entitlement to service connection for sleep apnea as secondary to HIV is remanded. The Veteran has claimed entitlement to service connection for sleep apnea as secondary to his service-connected HIV. He contends that the medication prescribed for his HIV caused or aggravated his sleep apnea. The Veteran, his representative, and the record raise no other theory of service connection. As a result, the Board will limit its analysis to the theory advanced by the Veteran. Robinson v. Peake, 21 Vet. App. 545, 552-56 (2008). The Veteran provided an NIH article in April 2018 about sleep disturbances in persons living with HIV. In summary, the article provides, "Up to 70 percent of persons living with HIV (PLWH) experience sleep disturbances. Insomnia and obstructive sleep apnea syndrome (OSAS) are common disorders seen in the primary care of PLWH. This paper reviews the current evidence and practice recommendations for treating these conditions." The Veteran provided a sleep apnea Disability Benefits Questionnaire (DBQ) completed by a private provider in April 2018. The examiner did not provide a nexus opinion. The Veteran underwent a VA examination in April 2018 for sleep apnea. The examiner provided that the Veteran's sleep apnea was less likely as not proximately due to or the result of his HIV disease. She provided the following rationale: "This [sic] are two separate condition [sic] no substantial medical literature supports that HIV could lead to sleep apnea, a nexus has not been established yet." As explained below, the Board finds that the April 2018 VA examination and opinion are inadequate. In a lay statement from the Veteran dated May 2018, the Veteran wrote about the inadequacies of his April 2018 VA examination: On April 25, 2018, I reported...for an examination...I signed in to the office around 11:25 and was called back at approximately 11:30...[the examiner] only asked me what I do for a living and if my sleep apnea diagnosis affects my daily work/life. I proceeded to tell [her] that my lack of regular sleep and the sleep apnea had a severe effect on my daily life. I had begun falling asleep at work, several times I had woken myself up gasping for breath, and my snoring was affecting my personal relationship and my friendships as I had to sleep in separate bedrooms at home or separate hotel rooms when I travel. I further advised [her] I had been provided a CPAP machine by my doctor and was using it to treat my sleep apnea. [She] did not ask any follow-on or in-depth questions and I departed the office at approximately 11:35. I feel [she] did not conduct a thorough examination of me, my condition, or a proper review of my file. I provided documentation to the VA of my sleep study, my sleep apnea diagnosis, and a Disability Benefits Questionnaire completed by my doctor. I don't feel she reviewed all of my file if she reviewed any of it other than the application for compensation. I specifically uploaded to the file the results of a medical study completed by the National Institutes of Health study showing individuals with HIV have a higher risk of sleep apnea. I asked [her] if she had reviewed the study or if she needed any additional documentation from my physician as I had brought it with me to the appointment but she declined. I feel that [she] did not do due diligence in reviewing my file. [She] spent very little time discussing my conditions or symptoms and dismissed me after barely five minutes in her office...Additionally, she interrupted my meeting to take what appeared to be a personal telephone call. Further, I inquired whether she had read the National Institutes of Health study regarding individuals with HIV and sleep apnea diagnosis and she did not respond to the question...I also fear that as a Nurse Practitioner who has no experience in evaluating patients with HIV, she does not have the correct background, medical training, or knowledge in treating patients with HIV to be able to effectively draw a conclusion based upon the National Institutes of Health study. The Board finds that in providing her opinion, the examiner did not discuss or even review the aforementioned treatise evidence. Additionally, the Veteran's competent and credible description of the examination indicates that the examiner did not provide a thorough or relevant evaluation. The lack of knowledge of the Veteran's medical history and expertise in infectious disease, immunology, or virology are significant in this case, where specialized knowledge of the interplay between medication, HIV treatment and reactions to medications in HIV patients, and sleep apnea are required. Thus, the Board finds that the opinion of the April 2018 VA examiner ignored relevant evidence and medical literature and based her conclusion on an incomplete factual premise, indicating she did not have the expertise necessary to provide an opinion on this subject. Therefore, the Board finds that the opinion of the April 2018 VA examiner is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (A medical opinion based on an inaccurate or incomplete factual premise is not probative). In a May 2018 private medical opinion, the Veteran's physician Dr. P provided, "[The Veteran] has been a long standing patient in my practice. He has recently been diagnosed with obstructive sleep apnea. There has been some association made between obstructive sleep apnea and HIV infection. Attached is a NIH journal article regarding sleep disturbance in HIV infected patients." The same NIH article about sleep disturbances in persons living with HIV that was submitted in April 2018 was provided. While Dr. P stated that there "may be some association" between HIV and sleep apnea, the Board finds that his statement does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence). The U.S. Court of Appeals for Veterans Claims has held that "[u]sing the term 'could,' without supporting clinical data or other rationale...simply is too speculative in order to provide the degree of certainty required for medical nexus evidence." Bloom v. West, 12 Vet. App. 185, 187 (1999). Other examples of insufficient terms include "may or may not be" (Tirpak v. Derwinski, 2 Vet. App. 609 (1992)), "may well be" (Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009)), and "could not rule out" (Goss v. Brown, 9 Vet. App. 109, 114 (1996)). The Board finds that Dr. P's statement that there "may be some association" is too speculative and that this letter cannot serve as medical nexus evidence sufficient to grant the claim. In a June 2018 Notice of Disagreement (NOD), the Veteran again discussed the inadequacies of the April 2018 VA examination. He also wrote, "Additionally, in the NIH study it states persons living with HIV, OSA risk is increased by several factors." He then quoted the NIH article stating, These factors include: ART regimens that cause lipodystrophy may lead to fat deposition in the neck that impinges on the airway, as well as fat deposition in the thorax and abdomen, increasing respiratory effort. The latter issue leads to hypoventilation both during the day and nighttime. PLWH may also experience general weight gain due to reduced physical activity or medication side effects, which would lead to the same problems caused by lipodystrophy. Furthermore, inflammation related to HIV disease itself may increase the risk of OSAS, given that inflammation is a known risk factor. He also provided, "My VA medical records indicate the medications I have been prescribed and taken for treatment of HIV disease and the noted potential side effects of these medications include lipodistrophy which is noted as a factor for OSA in persons living with HIV." The Veteran provided another lay statement in December 2019. In addition to the information he provided in his May 2018 statement regarding the inadequacy of his VA examination, he also noted, There is a preponderance of evidence in both NIH and other medical studies proving the use of certain medication used to treat HIV causes weight gain, the unequal distribution of body fat, and other conditions which have proven to cause or exacerbate sleep apnea. Since my HIV diagnosis in November 2011, I have been on multiple different drug regimens which are known to cause the aforementioned conditions. The Veteran has clearly invested research and intellect into his lay evidence and the Board does not doubt his sincerity. Although lay persons are competent to provide opinions on some medical issues, as to the specific issue in this case, the relationship between medication prescribed for HIV and sleep apnea falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Veteran does not have the medical training, experience, or expertise to provide competent medical evidence on this question. General Counsel Precedent Opinion 1-2017 determined that obesity can constitute an "intermediate step" between a service-connected disability and a disability that may be service connected on a secondary basis. The opinion also established that the intermediate step rule extends to circumstances where a service-connected disability aggravates obesity. When raised by the record, the Board must consider whether obesity was caused or aggravated by a service-connected disability, consistent with 38 C.F.R. § 3.310. The Veteran's lay evidence raises the theory that weight gain or unequal distribution of body fat were caused by HIV medication, and that these in turn aggravated or caused his sleep apnea. In the absence of competent evidence addressing the nexus element, the Board finds that remand is required in order to obtain a new VA examination by a qualified clinician with expertise in infectious diseases, virology, or immunology as to whether the Veteran's sleep apnea was caused or aggravated by his service-connected HIV. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Accordingly, the matter is REMANDED for the following action: 1. Request a medical opinion addressing the Veteran's claimed sleep apnea disability. In-person examination is not required unless deemed necessary by the examiner. The examination must be administered by a qualified clinician with expertise in infectious diseases, virology, or immunology. The examiner must review the treatise evidence of record, to include the NIH study titled, "Sleep Disturbances in Persons Living with HIV." Based upon a review of the entirety of the claims file, including the treatise evidence, the examiner is requested to provide an opinion as to the following questions: (a.) Is it at least as likely as not (probability of 50 percent or greater) that the Veteran's HIV, including the medication or treatment prescribed for HIV, caused the Veteran's sleep apnea? (b.) Is it at least as likely as not (probability of 50 percent or greater) that the Veteran's HIV, including the medication or treatment prescribed for HIV, aggravated (worsened beyond the natural progression) the Veteran's sleep apnea? (c.) Is it at least as likely as not that the Veteran's weight gain was caused by his service-connected HIV, including medication or treatment for this condition? (d.) Is it at least as likely as not that the Veteran's weight gain was aggravated (worsened beyond its natural progression) by his service-connected HIV, to include medication or treatment for this condition? (e.) If the answer to (c) or (d) is affirmative, then is it at least as likely as not that the Veteran's obstructive sleep apnea would not have occurred but for his weight gain? The opinions must consider the effects of any medication and treatment used to treat the Veteran's HIV. The opinion must discuss the treatise evidence of record, to include the NIH study titled, "Sleep Disturbances in Persons Living with HIV." Explanations for all opinions must be provided. In providing the requested rationale, the examiner is asked to cite to the pertinent evidence of record, including clinical records and the Veteran's statements regarding the onset of his symptoms. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Bristor 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.