Citation Nr: 21041887 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 17-43 127 DATE: July 10, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for prostate condition, to include as due to herbicide exposure is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1964 to December 1964 and from January 1965 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2020, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding has been associated with the record. These matters were previously before the Board in December 2020, when they were remanded for additional evidentiary development. In accordance with the December 2020 remand directives, addendum VA medical opinions were obtained. This case has been advanced on the docket pursuant to 38 C.F.R. § 20.900. 1. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD) is remanded. The Veteran contends that his current diagnosis of obstructive sleep apnea (OSA) is secondary to his service-connected posttraumatic stress disorder (PTSD). In accordance with the December 2020 remand, an addendum VA medical opinion was obtained in January 2021. Following a review of the evidence, the VA examiner opined that the Veteran's OSA is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support of the opinion, the VA examiner reasoned that the Veteran's medical records do not support an OSA onset in service. For secondary service-connection, the VA examiner opined that the Veteran's OSA is less likely than not caused by his service-connected PTSD. In support of this opinion, the VA examiner reasoned that there is no causative relationship established between PTSD and OSA, citing to a May 2015 Journal of Clinical Sleep Medicine. However, the VA examiner conceded that the study determined that there is an association between PTSD and OSA and that Veterans with PTSD screen as a high risk for OSA. The VA examiner did not reconcile the study's findings and the Veteran's condition. The VA examiner further opined that the Veteran's OSA is less likely than not aggravated beyond its natural progression by his PTSD. In support of this opinion, the VA examiner simply stated that there is not enough evidence to support the claimed OSA was aggravated by PTSD. The Board notes that the January 2021 VA examiner provided no meaningful discussion of the Veteran's and his wife's lay statements, as per the December 2020 remand directives. Another addendum opinion was provided in May 2021. The VA examiner stated that there is no evidence to show or support the claim that OSA is proximately due to or the result of the Veteran's service-connected PTSD and insufficient evidence to support that his OSA was aggravated by PTSD. In support of these opinions, the VA examiner reasoned that it is difficult to provide support with certainty that the Veteran's OSA was aggravated beyond its natural progression by PTSD. The VA examiner further noted that while PTSD may interfere with CPAP treatment, PTSD does not cause OSA. The Board notes that certainty is not required in determining service connection, as the Veteran is entitled to benefits where there is an approximate balance of positive and negative evidence (i.e., 50 percent or greater probability). See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990); 38 C.F.R. § 3.102 (2018). As the January 2021 and May 2021 opinions are inadequate, another addendum opinion is required that applies the correct standard and meaningfully takes into account the Veteran's and his wife's lay statements. Therefore, a remand is necessary in order to obtain an addendum opinion regarding the etiology of the Veteran's OSA, to include as secondary to service-connected PTSD. 2. Entitlement to service connection for prostate condition, to include as due to herbicide exposure is remanded. The Veteran asserts entitlement to service connection for prostate conditions, to include hypertrophy of prostate, nodular prostate, and benign prostatic hyperplasia. Specifically, the Veteran contends that his prostate conditions are secondary to herbicide exposure. In accordance with the December 2020 remand, an addendum VA medical opinion was obtained in January 2021. The VA examiner stated that the Veteran likely has three diagnoses for prostate condition, hypertrophy of prostate, nodular prostate, and benign prostatic hyperplasia. Following a review of the evidence, the VA examiner opined that the Veteran's prostate disabilities are less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner provided minimal reasoning, simply stating that there is not enough medical records or literature review to support service connection, to include herbicide exposure. Another addendum medical opinion was provided in May 2021. The VA examiner stated that there is not enough evidence to support any of the Veteran's prostate conditions were incurred in or caused by an in-service injury, event, or disease. To support this opinion, the VA examiner reasoned that the Veteran's prostate conditions are not presumptive of herbicide exposure. The Board finds that the January 2021 and May 2021 addendum VA medical opinions are inadequate to render a decision of the claim for service connection for prostate condition. Regarding direct service connection, the May 2021 examiner solely based his opinion on that basis that presumptive service connection is not warranted as the Veteran's diagnosed prostate conditions are not listed under 38 C.F.R. § 3.309 (e). However, the Board notes that service connection may be established on a direct service connection basis due to in-service exposure to herbicides. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Accordingly, remand is warranted in order to obtain an adequate VA medical opinion that addresses whether the Veteran's prostate conditions of hypertrophy of prostate, nodular prostate, and benign prostatic hyperplasia are related to service, to include conceded herbicide exposure on a non-presumptive basis. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's obstructive sleep apnea. The claims file and a copy of this remand must be made available to the examiner and the examiner should note in the examination report that the claims folder and the remand have been reviewed. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. The examiner should respond to the following: (a.) Is it as least as likely as not (50 percent probability or greater) that the Veteran's obstructive sleep apnea had its onset in or is otherwise etiologically related to active duty service? Please explain why or why not. (b.) Is it as least as likely as not (50 percent probability or greater) that the Veteran's obstructive sleep apnea is caused or aggravated by his service-connected PTSD? Please explain why or why not. In rendering the requested opinions, the examiner should address statements from the Veteran and his wife asserting that chronic sleep disturbances associated with his service-connected PTSD aggravates his sleep apnea and interferes with CPAP treatment. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 2. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's prostate conditions of hypertrophy of prostate, nodular prostate, and benign prostatic hyperplasia. The claims file and a copy of this remand must be made available to the examiner and the examiner should note in the examination report that the claims folder and the remand have been reviewed. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. For each diagnosed prostate condition, the examiner should provide an opinion on whether it is as least as likely as not (50 percent probability or greater) that the Veteran's prostate disability is related to an in-service injury, event, or disease, to include exposure to herbicides during service on a non-presumptive basis. (Continued on the next page) The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case (SSOC) and return the case to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. C. Slaughter, 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.