Citation Nr: 21027179 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 14-22 845 DATE: May 4, 2021 ORDER Entitlement to service connection for obstructive sleep apnea as secondary to service connected posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for a menstrual disorder, to include as due to an undiagnosed illness is remanded. Entitlement to service connection for memory loss, to include as due to an undiagnosed illness, is remanded. FINDING OF FACT Resolving all doubt in favor of the Veteran, her obstructive sleep apnea was caused or aggravated by her service-connected PTSD. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea as secondary to service connected PTSD have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1985 to May 1986, and December 1990 to July 1992; she also had additional periods of reserve service and with the Army National Guard. These matters come to the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) Montgomery, Alabama. Jurisdiction of this appeal is currently with the RO in Waco, Texas. In June 2017, the Veteran testified before a Veterans Law Judge. A copy of the transcript has been associated with the claims file. This hearing was before a now-retired judge. In March 2021 correspondence, the Veteran was given the opportunity to request another hearing and was notified that if she did not provide a response in 30 days, it would be assumed that she did not want another hearing. The Veteran did not respond to that letter, and the Board will therefore proceed. This case was most recently before the Board in September 2018, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development. The case has now been returned to the Board for appellate action. In addition, in an October 2020 rating decision, the AOJ granted service connection for chronic fatigue syndrome, left and right knee osteoarthritis (claimed as bilateral leg cramps), chronic sinusitis, and chronic migraines. An initial rating was assigned for each disability. To date, the Veteran has not submitted a notice of disagreement with this decision. As this decision represents a full grant of the benefits sought with respect to these claims for service connection, such issues are no longer before the Board for consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). Service Connection Sleep Disorder The Veteran seeks service connection for a sleep disorder. Specifically, the Veteran asserts that her sleep disorder is a presumptive condition related to her service in Southwest Asia, and to include as secondary to her service-connected PTSD. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1110, 1112, 1131; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). Service connection may also be granted for a disability due to a qualifying chronic disability of a veteran who served in the Southwest Asia Theater of operations during the Persian Gulf War provided that such disability became manifest during either active service in the Southwest Asia Theater of Operations during the Persian Gulf War or to a degree of 10 percent or more, under the appropriate diagnostic code of 38 C.F.R. § Part 4, not later than December 31, 2021, and by history, physical examination, and laboratory tests, the disability cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). In the instant case, the record reflects that the Veteran had service in Southwest Asia from February 8, 1991 to June 17, 1991 during the Persian Gulf War and, therefore, such laws and regulations are applicable to her claims. A chronic qualifying disability means a chronic disability resulting from an (A) undiagnosed illness; (B) the following medically unexplained chronic multi-symptom illnesses that are defined by a cluster of signs or symptoms: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) irritable bowel syndrome; or (4) any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multi-symptom illness; or (C) any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. 38 C.F.R. § 3.317(a)(2)(i). For the purposes of this section the term medically unexplained chronic multi-symptom illness means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The 6-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4). Signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to: (1) fatigue, (2) unexplained rashes or other dermatological signs or symptoms, (3) headache, (4) muscle pain, (5) joint pain, (6) neurological signs and symptoms, (7) neuropsychological signs or symptoms, (8) signs or symptoms involving the upper or lower respiratory system, (9) sleep disturbances, (10) gastrointestinal signs or symptoms, (11) cardiovascular signs or symptoms, (12) abnormal weight loss, and (13) menstrual disorders. 38 C.F.R. § 3.317(b). With claims based on undiagnosed illnesses, the veteran is not required to provide competent evidence linking a current disability to an event during service. Gutierrez v. Principi, 19 Vet. App. 1 (2004). There must be no affirmative evidence that relates the undiagnosed illness to a cause other than being in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(c). If signs or symptoms have been attributed to a known clinical diagnosis in the particular veteran's case being considered, service connection may not be provided under the specific provisions pertaining to Persian Gulf Veterans. VAOPGCPREC 8-98 at paras. 4-5 (Aug. 3, 1998). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Turning to the evidence, service treatment records are unremarkable for a sleep disorder. Post service treatment records confirm a diagnosis of obstructive sleep apnea and chronic sleep disturbances. With regard to the claimed sleep disorder, the September 2018 Board remand noted that there were multiple post-service treatment records that noted sleep difficulties with possible etiologies and that a sleep disturbance may also be a manifestation of an undiagnosed illness. Specifically, the Board remand directed the AOJ to obtain VA opinions to determine whether the Veteran's sleep disturbance was attributable to a diagnosed disorder, identify the diagnosis, and opine as to whether it was at least as likely as not that such disorder had its onset during service or is otherwise related to service. The Board also instructed the examiner to determine whether the Veteran had signs or symptoms of an undiagnosed illness or unexplained multisymptom illness at least as likely as not that manifested by sleep disturbance and/or memory problems, provide a rationale for the opinions rendered, and if he/she was unable to provide a rationale, to explain why. A February 2010 statement submitted by the Veteran husband indicating that the Veteran experienced sleep problems beginning active service and such symptoms have continued since. An April 2019 opinion from Dr. M.L., a private physician, noted that obstructive sleep apnea can cause complications with PTSD including increased depression and anxiety and opined that it was therefore more likely than not that the Veteran's PTSD was an aggravating factor to her obstructive sleep apnea. This physician cited medical research showing that PTSD stress hormones could cause sleep disturbance. This physician stated that obstructive sleep apnea could complicate PTSD and then stated that the opposite relationship was true for the Veteran. At a July 2019 VA examination for the Veteran's sleep disorder, the examiner opined that the condition was less likely than not proximately due to or the result of the Veteran's service-connected PTSD. In this regard, the examiner noted that while PTSD could contribute to risk factors for obstructive sleep apnea, there is no direct etiologic link that existed between the disorders. Therefore, the Veteran's obstructive sleep apnea was less likely than not proximately due to or the result of her PTSD. At an August 2019 VA examination for the Veteran's sleep disorder, the examiner opined that her sleep difficulties were at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. In this regard, the examiner noted the Veteran presented with sleep difficulties which were judged to be associated with her service-connected PTSD. Turning to the question of whether there is an etiological relationship between the Veteran's sleep disorder or obstructive sleep apnea and her service, the Board notes that the record contains contradicting opinions which must be considered and weighed. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (stating that the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). When faced with conflicting medical opinions, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board will consider each of these opinions below. First, the Board considers the April 2019 private opinion. This opinion has clear conclusions and supporting data, as well as reasoned medical explanations connecting the Veteran's obstructive sleep apnea to her service-connected PTSD. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Notably, the physician noted that obstructive sleep apnea can cause complication with PTSD and vice versa; and noted medical research showing PTSD stress hormones could cause sleep disturbances. The physician took into consideration medical research and literature, the Veteran's circumstances and diagnosis, and opined that her sleep apnea is secondary to her service-connected PTSD. This opinion is therefore afforded great probative weight. Next, the Board considers the July 2019 VA opinion. The Board finds that the July 2019 VA opinion is inadequate to decide the claim because the opinion did not provide supporting rationale for the conclusions reached and is internally inconsistent. Barr v. Nicholson, supra; Stefl v. Nicholson, supra; Nieves-Rodriguez v. Peake, supra. Specifically, the July 2019 examiner noted that the sleep disorder was less likely than not proximately due to or the result of her service-connected PTSD but then noted that PTSD could contribute risk factors for obstructive sleep apnea. The July 2019 VA examiner did not address the Veteran's circumstances and diagnosis of obstructive sleep apnea and merely concluded that there was no direct etiologic link between her PTSD and obstructive sleep apnea. This opinion is therefore afforded little, if any, probative weight. Finally, the Board considers the August 2019 VA opinion. The Board finds that the August 2019 VA opinion inadequate to decide the claim because the opinion did not provide supporting rationale for the conclusions reached. Barr v. Nicholson, supra; Stefl v. Nicholson, supra; Nieves-Rodriguez v. Peake, supra. However, as discussed below, the Board grants entitlement to service connection for obstructive sleep apnea in spite of the inadequacy of the August 2019 VA opinion. In sum, the Veteran has competently and credibly reported symptoms of sleep disturbances that began during active service and have continued since. The Veteran has a current diagnosis of obstructive sleep apnea. There is no competent medical opinion of record against the claim. Rather, there is a probative private opinion from April 2019 indicating the Veteran's obstructive sleep apnea is proximately caused or aggravated by her service-connected PTSD. Moreover, there is no sufficient basis for the Board to reject this supportive opinion and to further develop the claim. Cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (holding that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose). Accordingly, the Board finds that the preponderance of the evidence is for the claim and entitlement to service connection for obstructive sleep apnea as secondary to service-connected PTSD is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. REASONS FOR REMAND Service Connection Menstrual Disorder The Veteran seeks entitlement to service connection for a menstrual disorder, to include as due to an undiagnosed illness. As noted above, the claim was most recently before the Board in September 2018, and remanded to the AOJ for further development. At that time, the Board remanded the claim to afford the Veteran a VA examination. Specifically, the Board requested an etiology opinion to determine if the claimed menstrual disorder was related to an undiagnosed illness. The Board noted that an April 1991 separation medical history report showed that the Veteran reported having a change in her menstrual pattern without additional details and that she underwent a prior partial hysterectomy in 2012, with additional diagnoses of uterine fibroid, menorrhagia, and menorrhalgia; and that menstrual disorders qualify as an undiagnosed illness or medically unexplained chronic multisymptom illness (MUCMI). Specifically, with regard to a menstrual disorder, the Board remand directed the AOJ to obtain a VA etiology opinion to determine whether the Veteran's diagnoses of uterine fibroids, menorrhagia, or menorrhalgia diagnosed after service at least as likely as not had its onset during service or was otherwise related to service to include the history of a change in menstrual patter reported on the separation history report; to determine whether the Veteran had signs or symptoms of an undiagnosed illness or unexplained chronic multisymptom illness that was at least as likely as not manifested by a menstrual disorder; and provide a rationale for the opinions rendered, and if he/she was unable to provide a rationale, to explain why. The requested VA examination was afforded with respect to the Veteran's claim in August 2019. At an August 2019 VA examination for the Veteran's menstrual disorder, the examiner opined that such disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In this regard, the examiner noted the Veteran's periods of service, her diagnosis of menorrhagia, and the Veteran's report of being in good health at her entrance examination in November 1984. The examiner found that after reviewing the medical records and finding no substantiating documentation verifying her onset of symptoms or treatment of a menstrual condition to include uterine fibroids or menorrhagia during service, the examiner opined that it was less likely than not that her disorder is related to active service. Additionally, the August 2019 VA examiner found that the Veteran did not have signs or symptoms of an unexplained chronic multi-symptom illness that was at least as likely as not manifested by a menstrual disorder, to include uterine fibroids or menorrhagia. The Board finds the August 2019 VA medical opinion inadequate to decide the claim. In this regard, the examiner failed to provide supporting rationale for the conclusions reached. Rather, the examiner merely concluded there was no nexus without explanation. Nieves-Rodriguez v. Peake, supra. Additionally, the August 2019 VA etiology opinion did not address the April 1991 separation medical history report that showed the Veteran reporting having a change in her menstrual pattern without additional details, that she underwent a prior partial hysterectomy in 2012, with additional diagnoses of uterine fibroid, menorrhagia, and menorrhalgia, that menstrual disorders qualify as an undiagnosed illness or MUCMI as directed by the August 2019 Board remand directives and did not address the specified service treatment records as indicated in the September 2018 Board remand directives. Therefore, the Board finds the August 2019 opinion inadequate to decide the claim. Given these deficiencies, the Board is unable to find that substantial compliance with the prior remand has been achieved. As such, remand is again to obtain VA opinions that comply with the Board's prior remand directives. See Stegall v. West, 11 Vet. App. at 268, 271 (1998). Service Connection Memory Loss The Veteran seeks entitlement to service connection for memory loss, to include as due to an undiagnosed illness, and to include as secondary to her service-connected PTSD. As noted above, the claim was most recently before the Board in September 2018, and remanded to the AOJ for further development. At that time, the September 2018 Board remanded the claim to afford the Veteran a VA examination. Specifically, the Board requested opinions to determine whether the Veteran's memory problem as a distinct disorder or a symptom associated with another disorder. The Board remand directed the AOJ to obtain a VA opinion to determine whether the Veteran has a memory disorder attributable to a diagnosed disorder, then identify the diagnosis and opine whether it is at least as likely as not had its onset during service or is otherwise related to service; to determine whether the Veteran had signs or symptoms of an undiagnosed illness or unexplained chronic multisymptom illness that was at least as likely as not manifested by memory loss. The examiner was further directed to provide a rationale for the opinions rendered, and if he/she was unable to provide a rationale, to explain why. The requested VA examination was afforded with respect to the Veteran's claim in August 2019. At an August 2019 VA examination for the Veteran's memory loss, the examiner opined that her memory loss was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. In that regard, the examiner noted the Veteran presented with mild memory complaints which were judged to be associated with anxiety, and that the anxiety was more likely than not associated with her service-connected PTSD. The Board finds the August 2019 VA etiology opinion inadequate to decide the claim. In this regard, the VA etiology opinion is unclear as to whether the Veteran's memory loss is a distinct disability attributable to a diagnosed disorder or a symptom of an existing disorder. Moreover, the examiner failed to provide supporting rationale for the conclusions reached. Nieves-Rodriguez v. Peake, supra. Therefore, the Board finds the August 2019 opinion inadequate to decide the claim. Additionally, with regard to memory loss, the Board noted that post-service treatment records were inconsistent on whether the Veteran had a memory problem, and it was unclear if it was a distinct disorder or a symptom associated with another disorder. Given these deficiencies, the Board is unable to find that substantial compliance with the prior remand has been achieved. As such, remand is again to obtain VA opinions that comply with the Board's prior remand directives. See Stegall v. West, supra. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and her representative and afford her an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, forward the claims file to the examiner who previously examined the Veteran to obtain an addendum opinion to determine the etiology of her claimed menstrual disorder. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies and tests should be conducted. The need for further examination is left to the discretion of the examiner. Thereafter, the examiner is again asked to furnish an opinion with respect to the following questions: (A) Is at least as likely as not (50 percent or greater probability) that the Veteran's uterine fibroids, menorrhagia, and/or menorrhalgia had its onset during any period of service, or is otherwise related to such period of service? The examiner should specifically address the April 1991 service treatment record indicating a repot of change in menstrual pattern. (B) Did the Veteran have signs or symptoms of an undiagnosed illness or unexplained chronic multisymptom illness that is at least as likely as not (50 percent or greater probability) manifested by a menstrual disorder? In offering such opinions, the examiner should consider the Veteran's statements. The examiner must provide a complete rationale for all opinions and conclusions reached. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. 3. Following the receipt of outstanding records, forward the claims file to the examiner who previously examined the Veteran to obtain an addendum opinion to determine the etiology of her claimed memory loss. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies and tests should be conducted. The need for further examination is left to the discretion of the examiner. Thereafter, the examiner is again asked to furnish an opinion with respect to the following questions: (A) First, the examiner is asked to identify and explain whether the Veteran's claimed memory loss is a distinct diagnosed disorder, or if it a symptom attributable to another diagnosed disorder such as PTSD. (B) If the examiner finds that the Veteran's memory loss is a distinct diagnosed disorder that is not a symptom attributable to another diagnosed disorder, the examiner is asked to opine whether the memory loss diagnosis at least as likely as not (50 percent or greater probability) had its onset during any period of service, or is otherwise related to such period of service? (C) Did the Veteran have signs or symptoms of an undiagnosed illness or unexplained chronic multisymptom illness that is at least as likely as not (50 percent or greater probability) manifested by memory loss? (D) If the examiner finds that the Veteran's memory loss is a distinct diagnosed disorder that is not a symptom attributable to another diagnosed disorder, the examiner is asked to opine whether the memory loss diagnosis at least as likely as not (50 percent or greater probability) caused or permanently aggravated by her service-connected PTSD? In offering such opinions, the examiner should consider the Veteran's statements. The examiner must provide a complete rationale for all opinions and conclusions reached. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mariah N. Sim, 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.