Citation Nr: 21041136 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 17-07 714 DATE: July 8, 2021 REMANDED The issue of service connection for obstructive sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD) with unspecified depressive disorder, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1967 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) from a February 2016 rating decision. In April 2018, the Board reopened the previously denied claim for service connection for sleep apnea and remanded the appeal to the agency of original jurisdiction (AOJ) for additional development. In January 2021, the Board remanded the appeal again. The issue of service connection for obstructive sleep apnea, to include as secondary to service-connected PTSD with unspecified depressive disorder, is remanded. The Veteran has asserted several theories of entitlement to service connection for sleep apnea. First, in October 2016 correspondence received with his notice of disagreement (NOD), he expressed his belief that his sleep apnea was caused by interrupted sleep or sleep deprivation associated with his military duties and the circumstances of his deployment to Korea, suggesting that his sleep apnea began during military service. He also stated he "had sleep apnea right after [he] was honorably discharged from the Army." He related that his first wife, who was deceased, would tell him he was snoring heavily with choking sounds like gasping for air to breathe. Evidence of record indicates they were married from June 1972 until her death in February 1985. He reported that there were times when his wife from his second marriage, which lasted from June 1986 to October 1992, would wake him. He indicated that his current wife since December 2000 would state that it seemed "as though [he] was dying and having a hard time breathing." In February 2017, he asserted that his sleep apnea was associated with his service-connected PTSD. He again described some sleep deprivation and anxiety or fear of being killed while on active duty in Korea and asserted that "[t]hese kinds of things in me developed into sleep apnea over time." He reiterated that his former spouses and current spouse each had witnessed his "heavy snoring and heavy breathing." The Veteran's service treatment records are silent for complaints, diagnosis, or treatment related to sleep apnea. In reports of medical history at pre-induction in September 1967 and at separation in August 1969, he denied currently or ever having frequent trouble sleeping, frequent or severe headaches, throat trouble, frequent or excessive worry, nervous trouble of any sort, or frequent or terrifying nightmares. On physical examination in September 1967 and at separation in August 1969, his weight was recorded as 134 pounds and 132 pounds, respectively. A sleep disorder, including sleep apnea or symptoms of sleep apnea, was not identified. A January 2011 private treatment record from M. Waseem, M.D., reflects the Veteran presented to establish medical care and complained of "snoring for [the] last many months," requesting to get evaluated. He denied any daytime excessive somnolence, headaches, or any significant past medical history. He denied any depression or anxiety during a review of systems. His weight was recorded as 168 pounds. The impression was snoring. Dr. Waseem indicated the examination was non-focal and the plan included a referral to pulmonary to rule out sleep apnea syndrome. Later in January 2011, the Veteran presented for a consultation with S. Saleh, M.D., to evaluate his snoring and possible sleep apnea. He reported that his wife had noticed he had worsening snoring and that he snorts or gasps for air in his sleep. He denied headache or dry month on awakening, sleepiness during the daytime, falling asleep while driving, memory changes, depression, or recent weight gain. He reported working night shifts, going to bed at 9:30 a.m. and waking at 7:00 p.m. with the use of an alarm, and feeling unrefreshed upon awakening. He reported falling asleep without difficulty and waking once in the middle of his sleep to urinate. Following an examination, the assessment was sleep disturbance not otherwise specified (NOS). Dr. Saleh noted the history and physical examination were suggestive of obstructive sleep apnea and that the Veteran would need a sleep study. Subsequent private treatment records dating to February 2014 do not indicate that the Veteran had completed a sleep study and do not identify sleep apnea among his past medical history or active medical problems. However, in multiple statements in support of his claim, the Veteran indicated he had been diagnosed with sleep apnea in 2011 and been given a CPAP for treatment, but he returned it after a couple days because he could not afford it. The AOJ should ask the Veteran to provide a copy of any sleep study ordered by Dr. Saleh that the Veteran completed. Among VA treatment records dating since March 2000, the Veteran reported in June 2016 that he had been diagnosed with sleep apnea in 2009 through his private treatment provider, adding that he had a CPAP but was not using it. During a June 2018 primary care visit, he described having problems with snoring, breathing pauses while asleep, and feeling tired and fatigued. During a sleep medicine consultation with a pulmonologist the next day, he described the same symptoms. The assessment was high clinical suspicion for sleep apnea; the plan included starting the evaluation process through the VA Sleep Introduction Clinic. Subsequent records reflect that he failed to return the required sleep questionnaire and missed the sleep apnea evaluation scheduled but eventually completed a sleep study in 2020, which revealed moderate obstructive sleep apnea. Prior to that study, the Veteran was afforded a fee-basis examination in September 2019. He reported that he had had "loud snoring and breathing pauses while sleeping and daytime drowsiness since 1972" and that his symptoms had "stayed the same" since that time. The impression of a sleep study performed the following month was obstructive sleep apnea; sleep-related hypoxemia. During a March 2021 fee-basis examination, he related that his sleep apnea began in 1970, his wife had noted he was snoring extremely loudly and would wake up gasping for air, and that his symptoms had progressed or worsened. The diagnosis was obstructive sleep apnea. The September 2019 examining physician and March 2021 examining nurse practitioner each provided medical opinions as to whether the Veteran's current obstructive sleep apnea was incurred in or related to military service or caused or aggravated by service-connected PTSD with unspecified depressive disorder. Unfortunately, in addressing whether the service-connected psychiatric disability has aggravated the Veteran's sleep apnea, each examiner supported the unfavorable medical opinion that the sleep apnea had not been aggravated by indicating that PTSD and depressive disorder were not risk factors for developing sleep apnea. Here, the rationale provided by each examiner addresses causation rather than explaining how each concluded the Veteran's sleep apnea was not aggravated by his psychiatric disability. Moreover, the March 2021 examiner stated that "although there is literature stating that PTSD can aggravate obstructive sleep apnea, there is no medical literature found that shows PTSD as the direct and sole cause of obstructive sleep apnea." In this case, the examiner appeared to indicate that PTSD can aggravate obstructive sleep apnea but did not provide a rationale for the conclusion that the Veteran's sleep apnea had not been aggravated. Based on the foregoing, the AOJ should obtain a supplemental medical opinion that is supported by a detailed medical rationale as to whether the Veteran's service-connected PTSD with unspecified depressive disorder has aggravated his obstructive sleep apnea. See Barr v. Nicholson, 21 Vet. App. 303, 312 (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). The matter is REMANDED for the following action: 1. Ask the Veteran to submit the report of any sleep study ordered by the private pulmonologist, S. Saleh, M.D., following the January 2011 consultation to evaluate his reported snoring and possible sleep apnea. 2. Provide the Veteran's electronic claims file and a copy of this Remand to an appropriate clinician to obtain a supplemental medical opinion. Following a review of the claims file, the reviewing examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's obstructive sleep apnea is or has been aggravated by his service-connected PTSD with unspecified depressive disorder. A detailed medical explanation must be provided for all opinions expressed. For example, explain what evidence and/or medical studies supports the conclusion that the Veteran's obstructive sleep apnea either was or was not aggravated by his psychiatric disorder. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laura Kirscher Strauss 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.