Citation Nr: 21027225 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 09-00 348A DATE: May 5, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA), to include as due to service-connected bronchial asthma and/or service-connected anxiety disorder, not otherwise specified, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1985 to March 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision letter issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claim came before the Board in July 2018 wherein the Veteran's claim for service connection for OSA was denied. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court) and in August 2019, the Court, in relevant part, vacated the Board's July 2018 denial of entitlement to service connection for OSA and issued a Joint Motion for Remand (JMR), of which the Parties noted that the Veteran raised secondary theories of entitlement to service connection for OSA and that the Veteran previously submitted documents indicating a relationship between anxiety, depression and sleep apnea in July 2008 and June 2009, including having cited internet research and medical articles submitted. The Parties noted, however, that in the June 2017 examination in which the Board relied in part, the examiner did not note or comment on the evidence in providing his opinion, and as such, the examination was inadequate. The matter was remanded by the Board in December 2019, July 2020 and last in December 2020 to obtain adequate VA opinions consistent with the terms of the August 2019 JMR and prior Board remands. Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006). For the reasons noted below, the Board finds that remand is again warranted to obtain adequate opinions. Entitlement to service connection for OSA, to include as due to service-connected bronchial asthma and/or service-connected anxiety disorder, not otherwise specified, is remanded. The Veteran underwent an in-person VA sleep apnea examination in January 2021. However, after a review of the examination was shown to be inadequate, an addendum opinion was obtained in February 2021 from a separate VA examiner, directing the examiner to the April 2009 sleep study where the Veteran was diagnosed with OSA. The February 2021 examiner then confirmed that a review of the April 2009 sleep study shows mild OSA. The examiner then opined that a thorough review of the medical literature failed to demonstrate a causal relationship between asthma and OSA. The examiner noted that the articles submitted by the Veteran show that there is an increased risk of those with asthma to have sleep apnea but not that asthma can cause sleep apnea and rationalized that that the articles provide a statistical association between the two conditions but not causation, as OSA is a common disorder characterized by the narrowing or collapse of the pharyngeal airway during sleep and it is caused by anatomical variations in the craniofacial features and/or neck. The examiner indicated that the pathophysiology of asthma is different and affects the lower respiratory tract airways which results in difficulty breathing but not sleep apnea. The examiner concluded that, therefore, sleep apnea is less likely than not caused by asthma, but rather that the Veteran's history of being overweight is more likely than not the contributing factor for his condition of OSA. The examiner further opined that there is also no objective medical evidence (as measured by a worsening of the apnea/hypopnea index) to suggest that the Veteran's OSA has been aggravated beyond its normal progression by the service-connected bronchial asthma. The Board notes, however, that the examiner failed to provide any further rationale for the opinion. Additionally, the examiner opined that it is less likely than not that the Veteran's OSA is caused or aggravated by the service-connected anxiety disorder. The examiner rationalized that sleep apnea and anxiety disorder are separate medical conditions. The examiner indicated that, while there are medical studies which have shown an increased incidence of sleep apnea in certain mental health conditions (depression and anxiety in the referenced articles submitted), there is no research which has established a causal relationship between the Veteran's anxiety condition and OSA. The examiner remarked that a thorough review of the literature shows that treatment outcomes of these conditions share a bidirectional relationship, which undermines any causal relationship and perhaps points to common pathophysiological pathways inherent in all of these conditions. The examiner remarked that anxiety disorder is a mental health disorder characterized by feelings of worry, anxiety, or fear, whereas OSA is a common disorder characterized by narrowing or collapse of the pharyngeal airway during sleep. The examiner remarked that it is caused by anatomical variations in the craniofacial features and/or neck and anxiety disorder is a mental health disorder which does not affect the anatomy of the upper airway and therefore has no medical nexus for the etiology of OSA. The Board finds that the opinions above are inadequate for the reasons noted below. The Board notes that secondary service connection has two distinct theories of entitlement and require different consideration. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310. First, the examiner provided a bare conclusion, without the necessary rationalization, as to whether Veteran's OSA is aggravated by his service-connected asthma condition. It is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion. See NievesRodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion. Id. The Board may not substitute its own medical judgement in trying to make sense of it. See Monzingo v. Shinseki, 26 Vet. App. 97, 106. Here, there is not a fully articulated and sound rationalization provided for the examiner's opinion that the Veteran's OSA has not been aggravated beyond its normal progression by service connected bronchial asthma, beyond the bare conclusion that there is no objective evidence for such. It is a medical examiner's responsibility to provide a well-supported opinion so that the Board may carry out its duty to weigh the evidence of record. NievesRodriguez, 22 Vet. App. at 304. The medical opinion is not entitled to any weight because it contains only data and conclusions. Id. Second, as noted above, secondary service connection opinions require different consideration. However, here, although the above opinions are detailed and discuss the evidence as submitted by the Veteran, the examiner failed to provide distinguishing rationalizations for the secondary service connection theories of proximate causation and aggravation between the Veteran's OSA and anxiety disorder. Causation involves consideration of being proximately due to or the result of a service-connected disability, distinguished from aggravation, which involves consideration of increase in severity beyond its natural progress by a service-connected disability. Allen, 7 Vet. App. at 448. Here, given the examiner's combined recitation of rationale for both theories, the Board finds that the examiner did not adequately assess aggravation, rather, any increase in the severity of the nonservice-connected OSA beyond its natural progression due to the Veteran's service connected mental disorder and is thus inadequate. Id. Aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected conditions. Lastly, in light of failing to provide distinguishing rationalization for his opinion regarding an association between OSA and anxiety, the examiner remarked that a thorough review of the literature shows that treatment outcomes of these conditions share a bidirectional relationship, which undermines any causal relationship and perhaps points to common pathophysiological pathways inherent in all of these conditions. However, the Board is unable to determine whether the examiner accounted for possibly conflicting medical literature to his opinion. Turning to the literature, in Depression and Obstructive Sleep Apnea Of General Psychiatry, Jun. 27, 2005, Carmen M. Schroder and Ruth O'Hara, page four indicates "Clinically, this is of particular concern, as sedative antidepressants and adjunct treatments for depression may actually exacerbate OSA." Id. As noted above, the Board may not substitute its own medical judgement in trying to reconcile the opinion with the literature. As such, remand is necessary to address possibly conflicting medical evidence regarding aggravation. The matter is REMANDED for the following action: Return the claims file to the examiner who authored the February 2021 opinion. If this examiner is not available, forward the claims file to another clinician with the appropriate expertise. A. Opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's obstructive sleep apnea is either (i) caused or (ii) aggravated by his service-connected bronchial asthma. B. If not, opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's OSA is either (i) caused or (ii) aggravated by his service-connected anxiety disorder, not otherwise specified. NOTE: With respect to the questions concerning aggravation, the examiner is advised that aggravation under 38C.F.R. §3.310(b) does not require "permanent worsening" of the nonservice-connected disability. If aggravation is found, the examiner should attempt to identify the baseline level of disability prior to aggravation. In formulating the opinion, the examiner should consider and address the competent medical and lay evidence of record where appropriate, including the following articles: (a) Michelle Brandt, Sleep apnea, depression linked in Stanford Study, STANFORD UNIV.MED.CTR., Nov. 6, 2003; (b) Carmen M. Schroder and Ruth O'Hara, Depression and Obstructive Sleep Apnea, ANNALS OF GENERAL PSYCHIATRY, Jun. 27, 2005; Notably, the examiner is asked to address page four of the above the article indicating "Clinically, this is of particular concern, as sedative antidepressants and adjunct treatments for depression may actually exacerbate OSA." The examiner is asked to review the Veteran's claims file, including his lay statements, and discuss whether any antidepressants and adjunct treatments for the Veteran's service-connected anxiety disorder may have exacerbated his OSA. (c) Michel Alkhalil, M.D., et al., Obstructive Sleep Apnea Syndrome and Asthma: What Are the Links?, J.OF CLINICAL SLEEP MED., Vol. 5, No. 1 (2009); (d) Amir Sharafkhaneh, M.D., et al., Association of Psychiatric Disorders and Sleep Apnea in a Large Cohort, SLEEP, Vol. 28, No. 11 (2005); (e) Alan Mozes, Asthma Tied to Higher Risk of Sleep Apnea, HEALTHDAY NEWS, Jan. 13, 2015; (f) Rezaeitalab, F., et al., The correlation of anxiety and depression with obstructive sleep apnea syndrome, J.RES.MED.SCI. (Mar. 2014); and (g) Regina Patrick, Panic Attacks and Sleep Disorders, SLEEP REVIEW (Jul. 3, 2003). If the examiner determines that the Veteran's OSA is less likely than not caused and/or aggravated by his service-connected bronchial asthma and/or anxiety disorder, not otherwise specified, the examiner should discuss what other factor(s) caused the disorder. The examiner must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. D. C. JOHNSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Alli, 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.