Citation Nr: 21040271 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 18-39 047 DATE: July 3, 2021 REMANDED Entitlement to service connection for sleep apnea, including as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served on active duty for training from October 2002 to February 2003 and on active duty in the U.S. Army from February 2003 to May 2004, with additional periods of Active Duty for Training (ACDUTRA) and Inactive Duty for Training (INACDUTRA) in the United States Army Reserves. The Veteran testified before the undersigned Veterans Law Judge at a virtual teleconference hearing held in April 2021. A transcript of the hearing is of record. Although the Board regrets the additional delay, further development is necessary prior to adjudication of the claim. 1. Entitlement to service connection for sleep apnea, including as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. The Veteran asserts entitlement to service connection for sleep apnea. In particular, he asserts that his sleep apnea is related to weight gain resulting from medications prescribed for the treatment of his service-connected psychiatric pathology. See, e.g., July 2018 Substantive Appeal (VA Form 9); April 2021 Board Hearing Transcript. Although the Veteran was afforded a VA examination in May 2018 to determine the etiology of diagnosed sleep apnea, the Board finds the accompanying medical opinions to be inadequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In this regard, in finding that the Veteran's diagnosed sleep apnea was not "proximately due to or the result of [his] posttraumatic stress disorder to include medication prescribed for PTSD," the May 2018 VA examiner failed to provide an opinion as to whether the Veteran's sleep apnea was aggravated by the PTSD or the effects of PTSD medications. See May 2018 Medical Opinion Disability Benefits Questionnaire (DBQ). See El-Amin v. Shinseki, 26 Vet. App. 136 (2013) (holding that the Board erred in relying on an examiner's finding of a Veteran's nonservice-connected disorder being "not related to" a service-connected disorder to conclude that the former was not aggravated by the latter). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310. Significantly, although the VA examiner included an extensive rationale, including citations to, and quotations from, medical literature, the examiner focused solely upon the purported causal relationship between weight gain and sleep apnea. See May 2018 Medical Opinion DBQ (citing "recent medical research by the Mayo clinic" to support the conclusion that, although weight gain/obesity is a recognized "risk factor" for sleep apnea, the cause of sleep apnea is upper airway obstruction, and the "precise pathophysiologic pathways leading to [upper airway] obstruction in patients with [sleep apnea] are not well understood"). The examiner summarized her ultimate conclusion finding against a causative relationship between the Veteran's weight gain and his diagnosed sleep apnea, stating that, despite weight gain being a recognized risk factor for sleep apnea, "risk does not imply cause." Id. Additionally, the May 2018 VA examiner determined that there was "no objective clinical evidence of a diagnosed weight gain disability condition solely linked secondary to PTSD nor to the treatment of PTSD." Id. In support of this finding, the VA examiner copied and pasted medical research addressing the causes of weight gain. See id. (quoting George A. Bray, Etiology and Natural History of Obesity, 4 CLINICS IN FAM PRAC. 249 (2002)). However, the quoted portion of the medical journal article does not support the examiner's determination. Rather, the article notes that "[m]any factors contribute to the development of obesity," among them "drug induced weight gain." See id. (quoting Bray, supra.) (further stating that "[a] number of drugs can cause weight gain"). Moreover, the examiner failed to address the Veteran's VA treatment records which contain repeated notations by his medical treatment providers indicating that his weight gain was due, at least in part, to his psychiatric medication and reflecting that the severity of his sleep apnea symptoms was affected by his weight gain. See, e.g., June 2008 VA Primary Care Outpatient Note (reflecting an assessment of "weight gain, probably due to" his prescribed psychiatric medication); April 2009 VA Physician Letter (noting that the Veteran was prescribed a medication for his psychiatric condition that "commonly causes weight gain in the patients who take this medication" and stating that "[t]his could have very well contributed to his recent weight gain"); December 2011 VA Mental Health Telehealth Note (noting that the Veteran's psychiatric medication has side effects including "the potential for some weight gain"); May 2012 VA Polysomnography Consultation Report (diagnosing sleep apnea and reflecting treatment recommendations including that "weight loss is likely to be beneficial and should be encouraged"); July 2012 VA Sleep Disorders Clinic Note (indicating that weight loss would have a positive impact on the Veteran's sleep apnea symptoms). Accordingly, remand is required to afford the Veteran a new VA examination and opinion. See Barr, 21 Vet. App. at 312. Additionally, there is evidence of record indicating the possibility that the Veteran's sleep apnea arose during or immediately following his active duty service. Specifically, in a May 2013 Department of Defense (DOD) medical treatment note, the Veteran reported that he had been experiencing sleep apnea symptoms for roughly 8 years, so since approximately 2005. See May 2013 Army Health Clinic Outpatient Treatment Note (reflecting the Veteran's report that his "loud snoring[ and] frequent awakenings during the night" have been ongoing for 8 years). The Board notes that the Veteran is competent to report the onset, severity, and duration of a sleep pathology, as such symptoms as snoring, cessation of breathing, and excessive daytime sleepiness are certainly capable of lay observation. See Barr, 21 Vet. App. at 307-08 (holding that lay testimony is competent to establish the presence of observable symptomatology). Additionally, the United States Court of Appeals for Veterans Claims has emphasized that statements made to clinicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) Accordingly, given the proximity in time between the reported onset of his sleep apnea symptoms and his separation from active duty service in May 2004, and because reexamination is required due to the inadequacies discussed above, an opinion addressing whether the Veteran's sleep apnea arose during, or is otherwise related to, his active service should also be obtained. In this regard, the Board additionally notes that the Veteran served in the U.S. Army Reserves for more than 10 years following his separation from his period of active duty service in May 2004. However, there has been no verification of periods of active duty for training (ACDUTRA) and/or inactive duty for training (INACDUTRA). This is particularly important in light of the evidence reflecting that he was diagnosed with sleep apnea in May 2012 while he was still serving in the Reserves, and considering the evidence discussed above, raising the possibility that his sleep apnea symptoms initially manifested during a training period. See May 2012 VA Polysomnography Consultation Report (reflecting a diagnosis of "moderately severe sleep apnea); May 2013 Army Health Clinic Outpatient Treatment Note (noting that the Veteran reported first noticing symptoms later attributed to his diagnosed sleep apnea approximately 8 years prior, so in roughly 2005). In this regard, the Board notes that service connection means that a disability resulting from disease or injury was incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when the evidence shows that the disease was incurred in service. 38 C.F.R. § 3.303(d). The term "active military, naval, or air service" is defined to include active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty." 38 U.S.C. § 101(24); see also 38 C.F.R. § 3.6(a). ACDUTRA includes full time duty in the Armed Forces performed by members of the Reserves for training purposes. 38 U.S.C. § 101(22); see also 38 C.F.R. § 3.6(c). INACDUTRA is generally duty (other than full-time duty) prescribed for Reserves or duty performed by a member of the National Guard of any State (other than full-time duty). 38 U.S.C. § 101(23); 38 C.F.R. § 3.6(d). Annual training is an example of ACDUTRA, while weekend drills are INACDUTRA. For periods of ACDUTRA, service connection may be granted for disability resulting from injuries or diseases incurred or aggravated during such periods. For periods of INACDUTRA, service connection may be granted for disability resulting only from injuries incurred or aggravated during such periods, not disability resulting from diseases. 38 U.S.C. § 101(22), (24); see McManaway v. West, 13 Vet. App. 60, 67 (1999) (quoting Brooks v. Brown, 5 Vet. App. 484, 485 (1993) (discussing 38 U.S.C. §§ 101(24), 1131) (stating that the law "permits service connection for persons on inactive duty (training) only for injuries, not diseases, incurred or aggravated in line of duty"). To establish status as a Veteran based upon a period of ACDUTRA, a claimant must establish that he was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA. 38 C.F.R. § 3.1(a), (d); Harris v. West, 13 Vet. App. 509 (2000). The fact that a claimant has established status as a Veteran for other periods of service (e.g., a prior period of AD) does not obviate the need to establish that she is also a Veteran for purposes of the period of ACDUTRA or INACDUTRA where the claim for benefits is based on that period of ACDUTRA or INACDUTRA. Mercado-Martinez v. West, 11 Vet. App. 415 (1998). See also McManaway, 13 Vet. App. at 67 (citing Paulson v. Brown, 7 Vet. App. 466, 469-70 (1995), for the proposition that, "if a claim relates to period of active duty for training, a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve veteran status for purposes of that claim"). In accordance with 38 U.S.C. § 106, VA has the authority to determine whether a claimant was in active service, including ACDUTRA or INACDUTRA, at the time of a claimed incurrence. VA regulations governing requirements for establishing service for VA benefits purposes require military service department verification of the appellant's service. See Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); 38 C.F.R. § 3.203. "[O]nly official service department records can establish if and when an individual was serving on active duty, [ACDUTRA], or [INACDUTRA]." Cahall v. Brown, 7 Vet. App. 232, 237 (1994). Consequently, because the evidence raises the possibility that his sleep apnea symptoms initially manifested during his Army Reserves service, if not during his earlier active duty service, it is critically necessary to determine the exact circumstances surrounding and dates of his service in the Army Reserves, including exactly when he was on ACDUTRA and INACDUTRA. As there is not sufficient information of record to determine whether any claimed disability resulted from a disease or injury incurred or aggravated while performing ACDUTRA or from an injury incurred or aggravated while performing INACDUTRA, verification of all periods of ACDUTRA and/or INACDUTRA should be accomplished on remand. The matters are REMANDED for the following action: 1. Obtain and associate with the file any outstanding VA and/or Department of Defense treatment records. 2. Undertake appropriate action to attempt to verify all of the Veteran's periods of ACDUTRA and INACDUTRA with the U.S. Army Reserves, and issue a memorandum for inclusion in the claims file detailing each period of verified active military service, whether on active duty, ACDUTRA, or INACDUTRA. 3. Thereafter, upon receipt of all additional records, and any additional notification and/or development deemed warranted, schedule the Veteran for an appropriate examination with an examiner other than the VA examiner who performed the May 2018 VA examination, to assist in determining the nature and etiology of the Veteran's sleep apnea. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The entire claims file and a copy of this REMAND must be made available to the examiner prior to the examination. The examiner must note in the examination report that the evidence in the claims file has been reviewed. The examiner should elicit a full history from the Veteran. The examination should include any necessary diagnostic testing or evaluation. After eliciting a full history from the Veteran, conducting a complete review of the claims file (including all available medical treatment records), performing an examination of the Veteran, and completing any clinically indicated diagnostic testing, the examiner must provide an opinion as to the following: (A) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea had its clinical onset during a qualifying period of active military service (whether on active duty, ACDUTRA or INACDUTRA) or is in any way related or attributable to any in-service disease, event, or injury. (B) Whether it is at least as likely as not (50 percent or greater probability) that sleep apnea was either (a) caused by, or (b) aggravated by the Veteran's service-connected acquired psychiatric condition, to include posttraumatic stress disorder (PTSD) with generalized anxiety disorder and major depressive disorder, including as a result of treatment and/or medication taken for this condition. In providing these requested opinions, the examiner should note that that the Veteran is competent to report the onset and duration of his symptoms as well as his medical history. Accordingly, the examiner must consider all lay assertions, to include any allegations of continuity of symptomatology. Additionally, the examiner must consider and address, where necessary, the following: * The evidence of record indicating the possibility that the Veteran's sleep apnea arose during or immediately following his active duty service, including the May 2013 Department of Defense (DOD) medical treatment note in which the Veteran reported that he had been experiencing sleep apnea symptoms for roughly 8 years, so since approximately 2005. See May 2013 Army Health Clinic Outpatient Treatment Note (reflecting the Veteran's report that his "loud snoring[ and] frequent awakenings during the night" have been ongoing for 8 years); and * The Veteran's VA treatment records which contain repeated notations by his medical treatment providers indicating that his weight gain was due, at least in part, to his psychiatric medication and reflecting that the severity of his sleep apnea symptoms was affected by his weight gain, see, e.g., June 2008 VA Primary Care Outpatient Note (reflecting an assessment of "weight gain, probably due to" his prescribed psychiatric medication); April 2009 VA Physician Letter (noting that the Veteran was prescribed a medication for his psychiatric condition that "commonly causes weight gain in the patients who take this medication" and stating that "[t]his could have very well contributed to his recent weight gain"); December 2011 VA Mental Health Telehealth Note (noting that the Veteran's psychiatric medication has side effects including "the potential for some weight gain"); May 2012 VA Polysomnography Consultation Report (diagnosing sleep apnea and reflecting treatment recommendations including that "weight loss is likely to be beneficial and should be encouraged"); July 2012 VA Sleep Disorders Clinic Note (indicating that weight loss would have a positive impact on the Veteran's sleep apnea symptoms). The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of any identified disability. If the Veteran's reports regarding his history of symptoms of and treatment for any diagnosed disability are rejected, the examiner must provide a reason for doing so. All examination findings, along with the complete explanation for all opinions expressed, must be set forth in the examination report. If the examiner is unable to answer any question without a resort to speculation, then he or she should so indicate and provide a rationale for why an answer could not be provided. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 4. Following completion of the above directive, review the claims file to ensure compliance with this remand. If any examination report does not include adequate responses to the specific opinions requested, it must be returned to the examiner for corrective action. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. McCabe, 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.