Citation Nr: 21041180 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 17-41 307 DATE: July 8, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA), to include as due to service-connected posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1965 to August 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a Board hearing on his August 2017 VA Form 9, Appeal to Board of Veterans' Appeals. Subsequently, the Veteran requested that his appeal be continued without a hearing in September 2017. Accordingly, his request for a Board hearing is withdrawn. 38 C.F.R. § 20.704(e). This matter was previously before the Board in October 2019, wherein the Board remanded for military personnel records and a VA medical opinion. The matter has returned to the Board for adjudication. This appeal has been advanced on docket pursuant to 38 C.F.R. §§ 20.900(c) (2017). 38 U.S.C. §§ 7107(a)(2). Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The Veteran asserts that his sleep apnea is related to his active duty service, or in the alternative, related to his service-connected psychiatric disorder, diagnosed as PTSD, combat related, with depressive features. The October 2019 Board decision remanded the issue as there was no medical opinion regarding the Veteran's OSA. In this regard, the Board found that a medical opinion was necessary to determine whether the Veteran's OSA was directly related to service based on the Veteran's and his spouse's lay statements or associated with his service-connected PTSD on a secondary basis. The Board noted that since 2015, the Veteran has been examined three times regarding his PTSD and in each of these VA examinations, the respective examiner has identified the Veteran's sleep apnea as "relevant to the understanding or management of" the Veteran's PTSD. See December 2015 Initial PTSD DBQ; August 2017 Review PTSD DBQ; and June 2019 Review PTSD DBQ. The Veteran was afforded a VA examination in December 2019. The VA examiner opined that the condition was less likely than not (less than 50 probability) incurred in or caused by the claimed in-service injury, event or illness. The VA examiner addressed the statement from the Veteran's spouse who noted snoring observed in the Veteran for years. The examiner stated that snoring, like whistling, cannot happen unless there is air movement. Sleep apnea is the absence of air movement. The examiner stated that in the spouse's statement she also noted witnessed apneas. The examiner explained that most individuals have apneas during sleep and that less than five an hour in a symptomatic individual is considered normal. The Veteran did not have a sleep study until 2007, about forty years after he left military service. She indicated the two major risk factors for sleep apnea are age and weight. The Veteran was sixty years old when he was diagnosed with sleep apnea and had a body mass index (BMI) of 38.6 (normal BMI is 18.5-24.0) indicating severe obesity. The Veteran's separation examination noted he was 71 inches tall and weight of 175 pounds, a BMI of 24.4. She concluded that there is no evidence of record to suggest this Veteran had sleep apnea at age 18 to 20 years old while on active duty military service. Regarding secondary service connection, the examiner opined that the Veteran's OSA is less likely as not (less than 50 percent probability) due to or the result of the Veteran's service-connected condition. As rationale, she stated that OSA is an anatomical condition in which there is obstruction of the upper airway during sleep, although untreated sleep apnea may worsen PTSD and some treatments for PTSD (certain medications) may temporarily worsen untreated PTSD. She stated that at this time there is no nexus found in the medical literature reviewed that PTSD causes the anatomical condition responsible for OSA. Furthermore, regarding aggravation, the VA examiner stated that the Veteran's claimed condition was not at least as likely as not aggravated beyond its natural progression by his service-connected PTSD. She stated that a mental health condition does not cause or permanently aggravate OSA. Although some sedating medications used to treat PTSD (none of which this Veteran takes) can worsen untreated sleep apnea while taking those medications (or any other sedating substance), this does not change the upper airway anatomy or permanently aggravate OSA beyond its natural progression. In March 2021, the RO obtained an addendum medical opinion for the Veteran's OSA. The examiner opined that the claimed condition is less likely than not (less than 50 percent probability) proximately due to or the Veteran's service-connected conditions (prostate cancer, bilateral hearing loss, tinnitus, malaria, erectile dysfunction, and PTSD). He stated as rationale that OSA is a structural upper airway obstruction during sleep and is a separate entity from the prostate cancer, bilateral hearing loss, tinnitus, malaria, erectile dysfunction, and PTSD. The risk factors for OSA include obesity, gender, age, and upper airway crowding such as enlarged tonsils. The examiner concluded that a nexus is not established. Here, the December 2019 VA examiner indicated that a common cause of OSA is obesity and that the Veteran's BMI was 38.6 at the time he was diagnosed with OSA in 2007. Obesity may be an intermediate step between a service-connected disability and a current disability that may be service connected on a secondary basis under 38 C.F.R. § 3.310(a). See VAOPGCPREC 1-2017 (Jan. 6. 2017). Furthermore, in June 2021, the Veteran's representative submitted argument that research data shows that OSA is particularly prevalent in patients with psychiatric disorders. The representative stated that it has been suggested that the mood disturbance may represent a consequence of sleep apnea; but it is also argued that psychiatric disorder and their pharmacological treatment may contribute to and promote the development of sleep apneas. In support of the argument, the Veteran's representative cited to https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4610889. Additionally, the representative stated that for veterans with PTSD, a new study contends that the risk of sleep apnea increases along with the severity of the mental health condition. See https://www.psychiatryadvisor.com/home/topics/anxiety/ptsd-trauma-and-stressor-related/ptsd-severity-linked-to-higher-risk-of-sleep-apnea-in-veterans/. Finally, the representative noted that a 2018 comprehensive study published in the Primary Care Companion for CNS Disorders, was conducted to examine the correlations between OSA and psychiatric disorders such as major depressive disorder (MDD), PTSD, or bipolar disorder (BD) and whether comorbid psychiatric diagnosis increases the risk of OSA. The study, in which three of the four authors are employed as VA mental health professionals, showed a high prevalence of OSA in psychiatric patients, particularly with MDD (37.8%), and PTSD (35.5%) and less so with BD (16.7%). The final conclusions from the study showed a high prevalence of OSA in psychiatric patients, particularly in those with PTSD and MDD and less so with BD. See https://www.ncbi.nlm.nih.gov/pubmed/30107101. As such, the matter must be remanded for an addendum medical opinion that considers obesity and the articles presented by the Veteran's representative. The matters are REMANDED for the following action: 1. Obtain additional VA medical treatment records from March 2021 to present. All reasonable attempts should be made to obtain any identified records. 2. After completion of the above, obtain an addendum opinion from the VA provider who issued the December 2019 medicals opinion for obstructive sleep apnea (or if no longer available, an appropriate replacement). The decision for an in-person examination of the Veteran is left to the discretion of the examiner. The Veteran's record, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: a) Whether the Veteran's obstructive sleep apnea at least as likely as not (a 50 percent or greater probability) had an onset in service or was otherwise related to military service, to include discussion of the Veteran's and his spouse's lay statements. b) Next, if the examiner finds that the Veteran's obstructive sleep apnea is not the result of or related to military service, the examiner must opine whether his obstructive sleep apnea at least as likely as not caused by, or aggravated (i.e., worsened) by the Veteran's service-connected psychiatric disorder, diagnosed as PTSD, combat related, with depressive features. Secondary service connection is warranted for any incremental increase in disability. State whether there was an increase in disability regardless of permanence, but medically ascertainable. Any increase in disability should be described in terms of diagnosis, severity, and duration. The examiner is reminded that he or she must address both causation and aggravation. In offering the above requested opinion, the examiner must consider and discuss the statements made by the December 2015, August 2017, and June 2019 VA psychiatric examiners indicating the Veteran's sleep apnea as "relevant to the understanding or management of" the Veteran's PTSD. The examiner must also consider and discuss the articles submitted by the Veteran's representative regarding psychiatric disorders and OSA listed here: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4610889 https://www.psychiatryadvisor.com/home/topics/anxiety/ptsd-trauma-and-stressor-related/ptsd-severity-linked-to-higher-risk-of-sleep-apnea-in-veterans/ https://www.ncbi.nlm.nih.gov/pubmed/30107101 c) Finally, regarding obesity, although such cannot be a disability in and of itself, the examiner should address whether the Veteran's service-connected disabilities (to include any medications prescribed as treatment), individually or combined, caused, in whole or in part, his obesity. If the examiner finds that the Veteran's service-connected disabilities caused him to become obese, either in whole or in part, then the examiner must opine whether (1) obesity was a substantial factor in causing the Veteran's sleep apnea, and (2) whether his obstructive sleep apnea would not have occurred if but for the obesity caused by his service-connected disabilities. In considering any lay statements of record, the examiner should note that the Veteran is competent to attest to matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiners should provide a fully reasoned explanation. The examiner is reminded that rationale for a negative opinion must not be based solely on the lack of a relevant in-service diagnosis or clinical findings and must reflect consideration of the competent lay assertions of pertinent symptomology from service to the present. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Kim, 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.