Citation Nr: A23036070 Decision Date: 12/14/23 Archive Date: 12/14/23 DOCKET NO. 220615-250439 DATE: December 14, 2023 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1961 to October 1964. Although the Veteran initially requested Higher-Level Review when submitting the November 2021 VA Form 20-0996, Decision Review Request: Higher-Level Review, the Higher-Level Reviewer determined that there had been a duty to assist error and transferred the claim to the Supplemental Claim decision review option for additional development. In the June 2022 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on March 8, 2023. Therefore, the Board may only consider the evidence of record at the time of the April 2022 agency of original jurisdiction (AOJ) supplemental claim decision on appeal, as well as any evidence submitted by the Veteran or representative at the hearing or within 90 days following the hearing. 38 C.F.R. §?20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the supplemental claim decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. However, because the Board is remanding the claim of entitlement to service connection for obstructive sleep apnea, any evidence the Board could not consider will be considered by the AOJ in the adjudication of this claim. 38 C.F.R. § 3.103(c)(2)(ii). Service connection for obstructive sleep apnea. The issue of entitlement to service connection for obstructive sleep apnea is remanded to correct a duty to assist error that occurred prior to the April 2022 rating decision on appeal. The AOJ obtained a January 2022 medical opinion prior to the April 2022 rating decision on appeal. However, this medical opinion does not provide an adequate rationale regarding whether the Veteran's obstructive sleep apnea is caused or aggravated by his service-connected PTSD. Nor does it address whether the Veteran's obstructive sleep apnea had its onset in service or is otherwise related to service. The Board notes that, in an August 2020 rating decision, the AOJ denied service connection for obstructive sleep apnea. In the reasons for the decision, the AOJ indicated that "a VA physician has determined that OSA is less likely than not (less than 50% probability) proximately due to or the result of PTSD or the medications used to treat such. The OSA is less likely than not permanently aggravated beyond its natural progression by his service-connected conditions to include PTSD or the medications used to treat such. The Veteran's OSA is at least as likely as not (50 percent or greater probability) proximately due to or the result of his post service 'airway being sucked closed on inspiration during sleep.'" This referenced opinion is not dated and is not listed in the Evidence section of the August 2020, and there does not appear to be a corresponding record in the electronic claims file. The Veteran filed a supplemental claim in August 2021 along with articles discussing the relationship between OSA and PTSD. A VA opinion was obtained in August 2021 based on a review of available records. The clinician indicated the claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected condition. The clinician explained there is no conclusive evidence that PTSD causes OSA and would be less likely than not the cause of his OSA. In a decision from December 2021, the Higher-Level Reviewer determined that the Veteran had submitted a claim for sleep apnea secondary to his service-connected PTSD and the rationale from the medical opinion was incomplete because it did not discuss the medical articles submitted by the Veteran. A new opinion was obtained in January 2022. The clinician opined that the claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected condition. He explained there is no conclusive evidence in the literature to show that PTSD causes OSA. He further explained that, per the records, the Veteran's BMI is over 27, which would be more likely the cause of the Veteran's OSA as higher weight is the most common cause of OSA. Remand is warranted to obtain an opinion regarding direct service connection and an adequate opinion regarding secondary service connection. The Board notes that the Veteran's first claim for service connection for OSA was in December 2019. At that time, no mention of a claim of this condition being secondary to PTSD was noted. In correspondence from July 2019, the Veteran explained he was suffering from sleep apnea, which he did not have before service. He noted he has sleep problems due to nightmares and sleep apnea. He stated he began snoring when he came from Korea. He used to wake up the entire house due to his snoring. He did not seek any help in the past due to fear of getting put out in the service. The Veteran submitted another claim for service connection for PTSD in August 2020. At that time, he listed "PTSD," "Service in Korea," and "1962 and 1963" in the row pertaining to the claim for service connection for sleep apnea. The record prior to the April 2022 rating decision on appeal does not suggest that the Veteran's claim was limited to secondary service connection. For example, the Veteran reported snoring when he came from Korea, suggesting it was very soon after service in Korea. Furthermore, when asked about this specifically at the time of the March 2023 Board hearing, the Veteran and his representative indicated the Veteran's claim encompassed both direct and secondary service connection. Additionally, when the VLJ summarized that the Veteran started having symptoms of sleep apnea during service, that he was already not sleeping well and it continued since he got out of service, the Veteran concurred. An opinion regarding direct service connection is needed. With respect to secondary service connection, an addendum opinion with adequate rationale, specifically one that addresses the literature submitted by the Veteran and addresses aggravation, is warranted. The matter is REMANDED for the following action: 1. Obtain opinions from a qualified clinician regarding the following and whether a physical examination is needed is left to the discretion of the clinician: a. Whether the Veteran's obstructive sleep apnea is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) related to service. In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? The clinician should consider and address the Veteran's lay statements, including: " The Veteran's July 2019 correspondence in which he explained he began snoring when he came from Korea and used to wake up the entire house due to his snoring. He did not get help in the past due to fear of getting put out in service; " The Board hearing transcript from March 2023 in which the VLJ summarized that the Veteran started having symptoms of sleep apnea during service, that he was already not sleeping well, and it continued since he got out of service, and the Veteran concurred. b. Is the Veteran's obstructive sleep apnea at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) proximately due to service-connected posttraumatic stress disorder? Please specifically consider and address the literature submitted by the Veteran in August 2021 ("Prevalence of Sleep Disorders Among Soldiers With Combat-Related Posttraumatic Stress Disorder" and "Obstructive Sleep Apnea and Posttraumatic Stress Disorder among OEF/OIF/OND Veterans") when providing this opinion. c. Is the Veteran's obstructive sleep apnea at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) aggravated, i.e., worsened beyond its natural progression, by the Veteran's PTSD? Please specifically consider and address the literature submitted by the Veteran in August 2021 ("Prevalence of Sleep Disorders Among Soldiers With Combat-Related Posttraumatic Stress Disorder" and "Obstructive Sleep Apnea and Posttraumatic Stress Disorder among OEF/OIF/OND Veterans") when providing this opinion. Provide a rationale for all opinions. L.M. YASUI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Vemulapalli 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.