Citation Nr: 22017180 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 15-35 714 DATE: March 24, 2022 REMANDED Entitlement to service connection for sleep disability, to include sleep apnea, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1988 to August 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The matter last appeared before the Board in April 2021 at which the time the issue was remanded for further development. Here, the Board finds that remand is again warranted to obtain an adequate opinion. At the outset, the Board notes that the Veteran was granted service connection for posttraumatic stress disorder (PTSD) by way of November 2021 rating decision. Then, in his February 2022 argument, the Veteran, through his representative, advanced the theory of entitlement of the claimed sleep apnea disability being secondary to service-connected PTSD. An opinion in regard to this theory of entitlement has not been obtained. As such, remand is appropriate to obtain such opinion. Turning to the opinions of record, the Board notes that an October 2021 VA sleep apnea examination reflects that the examiner diagnosed the Veteran with obstructive sleep apnea. The examiner first indicated that he will need more records from the Veteran's folder uploaded. The examiner opined that the condition was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner rationalized that the VA lists sleep disturbances as an "undiagnosed illness" or "diagnosed medically unexplained chronic multi-symptom illness" for which a Gulf War Veteran may be presumptively service connected. Here, the Board notes that obstructive sleep apnea does not meet the criteria of an undiagnosed illness or diagnosed medically unexplained chronic multi-symptom illness. 38 C.F.R. § 3.317. The examiner further opined that there is no evidence in the medical records that would confirm that it is at least as likely as not that the condition is not proximately due to service-connected chronic cough, obstructive airway disease, medications prescribed for service-connected disabilities or fatigue documented in service. The examiner further opined that there is no evidence in the medical records that would confirm that it is at least as likely as not aggravated beyond its natural progression by service-connected chronic cough, or medications prescribed for service-connected disabilities obstructive airway disease. The examiner rationalized that there is no evidence of cough and obstructive airway disease, the use of any medication for said conditions, and the above-mentioned treatment records are not available at this time. The examiner indicated that there is evidence of cough and obstructive airway disease, and no opinion can be rendered. After clarification was requested, in a November 2021 addendum opinion, the examiner opined that it cannot be said with 50 percent or greater likelihood that there were signs or symptoms of a sleep disorder during active service that may have been a precursor for the now diagnosed sleep apnea. The examiner rationalized that the Veteran had fatigue documented at various intervals in 1992, 1994, 1995, and 2002. The examiner found that years later, the Veteran had polysomnography performed in February of 2009 that demonstrated 0 hypopneas, 0 obstructive apneas, 0 mixed apneas and 0 central apneas and did have a sleep study demonstrate severe obstructive sleep apnea in 2011 based on an AHI of 24.5 in 2011. The examiner found that the medical literature documents that while the sensitivity of polysomnography is strong, there are indeed false negatives that occur, but that this is more likely to occur in mild obstructive sleep apnea and if it was theoretically suggested that the polysomnography in 2009 was a false negative, the Veteran was found to have severe obstructive sleep apnea 2 years later. The examiner then indicated that it is less than 50 percent likely that the Veteran's documented fatigue in the early 1990's would be linked to an obstructive sleep apnea that was negative in 2009 on polysomnography but then severe 2 years later in 2011, as there is no pathophysiological mechanism to make such a link. The examiner also opined that it is less likely than not that the Veteran's obstructive sleep apnea is aggravated by service-connected cough and obstructive airway disease. The examiner rationalized that the Veteran is service connected for chronic cough and obstructive airway disease of undetermined etiology and upon examination, the Veteran displayed no evidence of cough and pulmonary auscultation was clear bilaterally, there was a CT chest performed in 2019 that was absent for any pathology besides benign and stable pulmonary nodule, and his May 2011 pulmonary function test was normal. The examiner noted that the Veteran was diagnosed with obstructive airway disease in 2015. The examiner concluded that although the Veteran is service connected for chronic cough and obstructive airway disease, it is less than 50 percent likely to be aggravating his sleep apnea as there is undetermined etiology and his examination and imaging is within normal limits at this time. Here, first the Board notes that for the October 2021 opinions, although the examiner provided direct and secondary opinions, as the examiner noted, he was not apprised of the complete record of evidence in rendering the opinions and then when rendering the November 2021 opinion, did not indicate whether the more records he requested were uploaded and reviewed. Second, in regard to the November 2021 addendum opinions, the Board notes that the examiner did not provide an opinion in regard to whether the diagnosed condition is proximately due to a service-connected condition. Third, in regard to the opinion of aggravation, the examiner essentially rationalized that as there is an undetermined etiology of the Veteran's service-connected conditions, and his examinations were within normal limits, they could not then have aggravated his obstructive sleep apnea. Due to the legal criteria for secondary service connection, the Board would find such rationale appropriate for the proximate causation opinion but is unable to reconcile the rationalization for an aggravation opinion. Causation involves consideration of being proximately due to or the result of a service-connected disability, distinguished from aggravation, which involves consideration of increase in severity beyond its natural progress by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. §§ 3.310. Finally, in the November 2021 opinions, the Board notes that the examiner did not opine as to whether the condition was proximately due to or aggravated by medication for service-connected disabilities. As such, remand is warranted to obtain adequate opinions. The matter is REMANDED for the following action: 1. Obtain any outstanding treatment records and associate those records with the claims file. 2. After the above development is complete, obtain an addendum opinion from an appropriate clinician to determine the etiology of the Veteran's obstructive sleep apnea. The necessity of an in-person examination is left to the discretion of the examiner. The examiner is asked to note review of the Veteran's claims file. The examiner is asked to provide an opinion regarding whether the Veteran's diagnosed obstructive sleep apnea is: (a) At least as likely as not related to an in-service injury, event, or disease. The examiner is asked to directly address the lay and medical record of evidence including the September 1992, December 1994, and January 1995 VA medical center (VAMC) treatment records, and February 2002 private treatment records that noted fatigue. (b) At least as likely as not proximately due to service-connected chronic cough and obstructive airway disease, PTSD or medications prescribed for service-connected disabilities. (c) At least as likely as not aggravated beyond its natural progression by service-connected chronic cough and obstructive airway disease, PTSD or medications prescribed for service-connected disabilities. A complete rationale for all opinions is required. Mary E. Rude Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Alli, 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.