Citation Nr: 21032740 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 16-34 976 DATE: May 27, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran had active duty in the United States Air Force from April 1969 to January 1973 including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board)upon appeal from an April 2015rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston Salem, North Carolina. The Board remanded the issue of service connection for OSA in October 2018 and June 2020 for further development. Regrettably, another remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Discussion The Veteran asserts that OSA was incurred in, aggravated by, or otherwise attributable to, active duty service. Alternatively, the Veteran contends that OSA was proximately caused by, or aggravated beyond its natural progression by, PTSD. The record includes a lay statement from the Veteran's spouse suggesting that the Veteran's sleep apnea symptoms began as early as 1972. In particular, the Veteran's spouse noted that she has known the Veteran since 1972 (during service) and that he had always snored loudly and struggled to breathe when he slept. Two private psychiatrists, Dr. H.J. and Dr. E.H., submitted information to the Board addressing secondary service connection of the Veteran's OSA to his PTSD. In an undated letter received in June 2015, Dr. H.J noted that PTSD might not cause sleep apnea but might exacerbate the symptoms, because there more REM sleeps in PTSD and because the apnea episodes happen during the REM sleep due to the decrease in the muscle tone in the airway. In July 2020, Dr. E.H., a private physician who reported that he has treated the Veteran since October 2015, indicated that it is at least as likely as not that the Veteran's service-connected PTSD caused, contributed to, or aggravated the Veteran's OSA. As a rationale for this positive nexus opinion, Dr. H. referenced a 2010 Walter Reed Medical Center cohort study and other studies which draw an association between PTSD and OSA. The Board takes notice of the study entitled, "The Comorbidity of Sleep Apnea and Mood. Anxiety, and Substance Disorders among Obese Military Veterans within the Veterans Health Administration" (Babson et. al 2013). Pursuant to the Board's June 2020 decision and remand, a VA clinician rendered an opinion in July 2021 to determine the nature and etiology of the Veteran's sleep apnea and whether it is at least as likely as not that the Veteran's OSA had its onset in service, or is otherwise attributable to, service in light of the Veteran's spouse's statements of her observed symptoms of the Veteran snoring loudly and struggling to breathe in his sleep since 1972. Upon review of the evidence of record, this clinician indicated that the Veteran's OSA was less likely than not incurred in or caused by the claimed in-service injury. The clinician indicated that the spouse's lay statement concerning snoring is not necessarily the cause of sleep apnea. The clinician cited evidence shows that the Veteran was diagnosed with OSA over two decades after service and that OSA gets worse without treatment. Upon a polysomnogram in 1996 (prior to treatment), the Veteran was neither moderate nor severe. Also, there were no reports of daytime somnolence. The clinician cited risk factors for sleep apnea including advanced age, increased body weight, neck circumference, and smoking. This clinician also rendered a negative nexus opinion for OSA on a secondary basis. The clinician determined that OSA was less likely than not proximately due to or the result of the Veteran's service-connected PTSD. As a rationale, the clinician indicated that there are two types of sleep apnea. OSA is mechanical and occurs with the narrowing of the hard plate and when muscles in the back of the throat relax and close off the airway; whereas, central sleep apnea occurs when the brain fails to transmit signals to the breathing muscles and cessation occurs. Referring to an article that the Veteran submitted, the clinician opined that the article does not states that PTSD causes OSA, rather the article notes these is a higher prevalence of people who have PTSD and sleep apnea. And, the clinician added that the "latest research" has made a connection between the incidence of central sleep apnea, PTSD, and traumatic brain injuries (TBIs). The Veteran does not have central sleep apnea, consequently such connexity cannot be established. Lastly, the clinician indicated that VA progress notes disclose that the Veteran needs to lose weight and stop smoking. A review of the Veteran's VA progress notes reveals that clinicians indicated that the Veteran's body mass index (BMI) was "at risk" and clinicians informed the Veteran of the health risks of obesity, advising weight management programming from 2015. Additionally, a polysomnogram from A., a private pulmonary care facility, noted that the Veteran was obese ("mild truncal obesity") in November 2014. As the VA opinion and Dr. H.J. and Dr. E.H. offer quite different professional opinions as to the coincidence/co-morbidly/association/causation of PTSD (and other mental health disabilities) and sleep apnea (central or OSA), the Board requires a clarifying and comprehensive VA sleep apnea examination report in order to evaluate the Veteran claim in a fully informed way. See Ardison v. Brown, 6 Vet. App. 405, 407 (1994). The matters are REMANDED for the following actions: 1. Contact the Veteran and his representative to ascertain whether there are any outstanding private records related to the Veteran's OSA. If affirmatively indicated, prepare releases, obtain the records, and associate the records with the claims file. 2. Obtain any and all outstanding VA treatment records, progress notes, and examination reports. All efforts should be undertaken until all outstanding VA records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain these identified medical records would be futile. See 38 U.S.C. § 5103A(c)(1)(C). 3. Arrange for a VA sleep apnea examination with an appropriate physician other than the July 2021 clinician. The clinician must review the claims file and refer to specific medical and lay evidence when rendering opinions. Upon completion of the above, the clinician is asked to respond to the following inquiries: a. Whether it is as least as likely as not (50 percent probability or more) that the Veteran's OSA was incurred in, aggravated by, or otherwise attributable to, the Veteran's active duty service? AND b. Whether it is at least as likely as not that the Veteran's OSA was proximately caused by, or aggravated beyond its natural progression by, his service-connected PTSD. The clinician must address causation and aggravation separately. The Board calls attention to VAOPGCPREC 1-2017, in which VA's General Counsel opined that obesity may be an intermediate step between a Veteran's service-connected disabilities and OSA. The Board observes that Dr. H. suggests that at least one VHA study supports that obesity plays a role in the coincidence/causation of OSA and mental health disabilities. Consequently, the clinician must consider the proposition of whether but for his "intermediate" obesity, with connexity to PTSD, the Veteran would not have developed OSA. The Veteran and his spouse are competent to report their observed symptoms and history. Such reports, including those of continuity of symptomatology and functional limitations, must be acknowledged and considered in formulating any opinion. If the clinician rejects the Veteran's reports, she/he must provide an explanation for such rejection. The clinician should note any points of agreement or disagreement between the opinions of record. A complete, clearly-stated rationale for the conclusions reached must be provided. The examiner should comment on and express agreement or disagreement with the opinions of Dr. H.J and Dr. E.H as well as the previous VA examiners. An explanation is required that takes into account the record and pertinent medical principles and the clinician's rationale should include citation to pertinent evidence and/or medical principles relied upon to form the opinion. Of interest is an opinion on the cited theories that OSA is caused or aggravated beyond its normal progression by PTSD directly or through the intermediate step of obesity in this particular Veteran's case. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. J. Komins, 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.