Citation Nr: 0911508	
Decision Date: 03/27/09    Archive Date: 04/01/09

DOCKET NO.  07-33 623	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, 
Oklahoma


THE ISSUE

Entitlement to service connection for sleep apnea, secondary 
to major depressive disorder.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Appellant and spouse


ATTORNEY FOR THE BOARD

Amy R. Grasman, Associate Counsel 


INTRODUCTION

The Veteran served on active duty from January 1990 to April 
1992.  

This appeal comes before the Board of Veterans' Appeals 
(Board) from a May 2006 rating decision issued by the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Muskogee, Oklahoma.  

In February 2009, the Veteran testified in a video conference 
hearing in front of the undersigned Veterans Law Judge.  The 
transcript of the hearing is associated with the claims file 
and has been reviewed.

The Board also received additional medical evidence from the 
Veteran in February 2009, consisting of correspondence 
written by his private physician.  The new evidence was 
accompanied by a waiver of the Veteran's right to initial 
consideration of the new evidence by the RO.  38 C.F.R. §§ 
19.9, 20.1304(c) (2008).  Accordingly, the Board will 
consider the new evidence in the first instance in 
conjunction with the issue on appeal.


FINDINGS OF FACT

1.	The Veteran has been notified of the evidence necessary to 
substantiate his claim, and all relevant evidence necessary 
for an equitable disposition of this appeal has been 
obtained.

2.	The competent medical evidence of record is in relative 
equipoise and does not preponderate against the Veteran's 
claim that sleep apnea is secondary to his major depressive 
disorder.  




CONCLUSION OF LAW

Sleep apnea was proximately due to or the result of a 
service-connected disability.  38 U.S.C.A. §§ 1101, 1110, 
(West 2002 and Supp. 2008); 38 C.F.R. §§ 3.303, 3.310 (2008).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

As provided for by the Veterans Claims Assistance Act of 2000 
(VCAA), the VA has a duty to notify and assist claimants in 
substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008); 
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2008).  In 
this case, the Board is granting service connection for sleep 
apnea, which is the full benefit sought on appeal.  
Accordingly, assuming, without deciding, that any error was 
committed with respect to either the duty to notify or the 
duty to assist, such error was harmless and will not be 
further discussed.  

Service connection may be granted for a disability resulting 
from a disease or injury incurred in or aggravated by 
service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. 
§ 3.303(a) (2008).  This may be shown by affirmative evidence 
showing inception or aggravation during service or through 
statutory presumptions.  Id.  

To establish direct service connection for a claimed 
disorder, there must be (1) medical evidence of current 
disability; (2) medical, or in certain circumstances, lay 
evidence of in-service occurrence or aggravation of a disease 
or injury; and (3) medical evidence of a nexus between the 
claimed in-service disease or injury and the current 
disability.  See Hickson v. West, 12 Vet. App. 247, 253 
(1999); see also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 
1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992).  Service 
connection may be granted for any disease diagnosed after 
discharge, when all the evidence, including that pertinent to 
service, establishes that the disease was incurred in 
service.  38 C.F.R. § 3.303(d) (2008).

Service connection may be established on a secondary basis 
for a disability that is proximately due to or the result of 
a service-connected disease or injury.  38 C.F.R. § 3.310(a) 
(2008).  Establishing service-connection on a secondary basis 
requires evidence sufficient to show (1) that a current 
disability exists and (2) that the current disability was 
either (a) caused by or (b) aggravated by a service-connected 
disability.  See 38 C.F.R. § 3.310(a); see also Allen v. 
Brown, 7 Vet. App. 439 (1995) (en banc) reconciling Leopoldo 
v. Brown, 4 Vet. App. 216 (1993) and Tobin v. Derwinski, 2 
Vet. App. 34 (1991).  

In June 2005, the Veteran was diagnosed with severe 
obstructive sleep apnea.  The Veteran asserts that the sleep 
apnea is related to his service connected major depression 
and anxiety.  The Board has reviewed all the medical evidence 
of record and finds that the medical record does not 
preponderate against the Veteran's claim that sleep apnea is 
related to his major depressive disorder.  See Alemany v. 
Brown, 9 Vet. App. 518, 519 (1996) (to deny a claim on its 
merits, the evidence must preponderate against the claim).  
Indeed, the Board finds the evidence of record is in relative 
equipoise on this issue.

In a VA QTC examination in March 2006, the examiner found 
that the Veteran had obstructive sleep apnea.  There was a 
subjective factor of snoring and an objective factor of 
obesity.  In an addendum, the examiner noted that the 
etiology of the Veteran's sleep apnea was exogenous obesity, 
excessive relaxation of soft tissue in the pharynx.  

In response, the Veteran submitted private medical evidence 
to support his claim.  The Veteran's private physician 
submitted letters in February 2009, August 2007 and November 
2006.  The Veteran indicated in his hearing in February 2009 
that he had been treated by this physician for nine years.  
The physician opined that the sleep apnea was directly 
related to anxiety and secondary to weight gain.  The 
physician indicated that if VA concluded that the sleep apnea 
is related to the Veteran's obesity, then the obesity was 
also related to the depression and anxiety which was the 
cause of overeating and anxiety.  The physician concluded 
that both the Veteran's sleep apnea and obesity were related 
to the service connected major depressive disorder and 
anxiety.  

Another VA examination was conducted in June 2008.  The 
examiner opined that the Veteran's sleep apnea was not 
related to his major depression, but to his obesity.  The 
examiner found that there was no evidence from research 
articles that anxiety and depression can cause sleep apnea.  
Therefore the examiner concluded that it was less likely than 
not that the Veteran's sleep apnea was related to his 
depression and anxiety. 

In this case, the Board finds that the private physician's 
opinion is persuasive and probative.  An evaluation of the 
probative value of medical opinion evidence is based on the 
medical expert's personal examination of the patient, the 
examiner's knowledge and skill in analyzing the data, and the 
medical conclusion reached.  The credibility and weight to be 
attached to such opinions are within the province of the 
Board as adjudicators.  Guerrieri v. Brown, 4 Vet. App. 467, 
470-71 (1993).  The Veteran's private physician treated the 
Veteran for approximately 9 years.  He fully examined the 
Veteran and was familiar with his medical history as well as 
his obesity and service connected depressive disorder.  

Although the VA examination was also probative, the evidence 
of record seems to be in relative equipoise.  The VA 
examiners opined that the Veteran's sleep apnea was not 
related to his depressive disorder, but was related to 
obesity.  In contrast, the private physician indicated that 
sleep apnea was related to depression and anxiety.  
Additionally, the private physician evaluated the VA opinion 
and indicated that obesity was also secondary to the 
Veteran's depressive disorder and related to his sleep apnea.  
The Board finds that there is no basis for favoring one 
opinion over another.  As such, the objective medical 
evidence of record is in relative equipoise as to whether 
sleep apnea is related to the service connected major 
depressive disorder.  See 38 U.S.C.A. § 5107(b) (West 2002); 
38 C.F.R. § 3.102 (2008); Gilbert v. Derwinski, 1 Vet. App. 
49, 55 (1990).  Accordingly, the conflicting probative 
medical opinions do not preponderate against the Veteran's 
claim.  Affording the Veteran the benefit of the doubt, the 
Board finds that service connection for sleep apnea is 
warranted.

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ORDER

Service connection for sleep apnea is granted. 



____________________________________________
John E. Ormond, Jr.
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs