Citation Nr: 0918715 Decision Date: 05/19/09 Archive Date: 05/26/09 DOCKET NO. 06-39 037 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for sleep apnea as secondary to service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sara Fargnoli, Associate Counsel INTRODUCTION The Veteran had active service from March 1966 to March 1968. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a January 2004 rating action of the Department of Veterans Affairs (VA), Regional Office (RO) in Augusta, Maine. Jurisdiction is with the New York, New York RO. The Veteran provided testimony at a September 2008 hearing before the Board. A transcript of the proceeding is associated with the claims folder. The Board remanded the Veteran's appeal in November 2007. The issue of entitlement to an effective date earlier than February 16, 2005, for the award of a 30 percent evaluation for service-connected PTSD is not presently before the Board. As directed by the Board in the November 2007 remand, the AMC/RO furnished the Veteran and his representative a statement of the case, dated December 17, 2007. Thereafter, the Veteran did not file a timely substantive appeal. See 38 U.S.C.A. § 7105(a); 38 C.F.R. §§ 3.104, 20.302(b). The Board is satisfied that there has been substantial compliance with the remand directives and it may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The competent and probative medical evidence of record weighs in favor of a finding that the Veteran's current sleep apnea is aggravated by his service-connected PTSD. CONCLUSION OF LAW Sleep apnea is proximately due to or the result of the Veteran's service-connected PTSD. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION In reaching this determination, the Board has reviewed all the evidence in the Veteran's claims file, which includes his multiple contentions, as well as service treatment records, private medical records, and examinations. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim, and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2008); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Additionally, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. Given the favorable grant of service connection for the Veteran's claim, any deficiencies as to VA's duties to notify and assist are deemed moot and no conceivable prejudice to the Veteran could result from this adjudication. See Bernard v. Brown, 4 Vet. App. 384. 393 (1993). Discussion The Veteran contends that he is entitled to service connection for sleep apnea as secondary to his service- connected PTSD. According to the law, service connection is warranted if it is shown that a veteran has a disability resulting from an injury incurred or a disease contracted in the line of duty, or for aggravation of a preexisting injury or disease in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). It is further noted that additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Board notes that, effective October 10, 2006, there was an amendment to the provisions of 38 C.F.R. § 3.310. See 71. Fed. Reg. 52744-47 (Sept. 7, 2006). The amendment sets a standard by which a claim based on aggravation of a non- service-connected disability by a service-connected one is judged. Although VA has indicated that the purpose of the regulation was merely to apply the Court's ruling in Allen, it was made clear in the comments to the regulation that the changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the non-service-connected disability before an award of service connection may be made. This had not been VA's practice, which suggests that the recent change amounts to a substantive change. Given what appears to be substantive changes, and because the Veteran's claim was pending before the regulatory change was made, the Board will consider the version of C.F.R. § 3.310 in effect before the change, which version favors the claimant. When the evidence of record is reviewed under the law and regulations as set forth above, the Board finds support for a grant of service connection for sleep apnea, as secondary to service-connected PTSD. At the outset, the Board notes that a January 2003 private treatment record indicates a current diagnosis of obstructive sleep apnea. The Board also notes, that in a January 2004 rating decision, the RO granted service connection for PTSD. Thus, the issue for consideration is whether there is competent evidence establishing a causal connection between the service-connected disability and the current sleep apnea. As indicated above, in January 2003, Dr. G.W. diagnosed the Veteran with obstructive sleep apnea; however, in August 2003, the Dr. indicated that he could not provide a causal link between the Veteran's PTSD and his obstructive sleep apnea. In October 2003, the Veteran underwent a VA examination. As a result, the Veteran was again diagnosed with sleep apnea. Upon review of the Veteran's claims file the examiner opined, that it is not at least as likely as not that the Veteran's sleep apnea is secondary to his PTSD. The examiner further opined that there is no evidence in the medical literature to support a nexus between sleep apnea and PTSD. In June 2004, the Veteran's private otolaryngologist, Dr. S.S., indicated that it is at least as likely as not that the Veteran's obstructive sleep apnea is associated with his PTSD. Dr. S.S. specifically disagreed with the October 2003 VA examiner's statement regarding a lack of nexus in the medical literature between sleep apnea and PTSD. In addition, Dr. S.S. provided a list of several articles that support an association between sleep apnea and PTSD. Moreover, he noted that the Veteran has a veiled palate with an elongated uvula and a laterally-scalloped hypertrophic tongue which crowd his oropharngeal and hypopharyngeal airway. Dr. S.S. also noted, that on either oral or nasal breathing, the Veteran's soft palate vibrates excessively; specifically, mucosal and submucosal elements of his inferior turbinates are hypertrophic, and mucosa of his nasal turbinates are significantly edematous, boggy, and pale. Dr. S.S. concluded that the aforementioned physical findings have a long-established relationship with sleep apnea. In August 2004, the VA examiner opined that it is not at least as likely as not that the Veteran's PTSD is the cause of his sleep apnea. The examiner based his conclusion upon the 43rd edition of Current Diagnosis and Treatment (2004), by Lawrence Tierney, M.D., Maxine Papadakis, M.D., and Stephen Mcpahee, M.D., which reports that the upper airway obstruction during sleep occurs when loss of normal pharyngeal muscle tone allows the pharynx to collapse passively during inspiration. Patients with anatomically narrowed upper airways are predisposed to obstructive sleep apnea, and the ingestion of alcohol or sedatives before sleeping or nasal obstruction of any type, including common cold, may precipitate or worsen the condition. Hypothyroidism and cigarette smoking are noted as additional risk factors for obstructive sleep apnea. Furthermore, regarding the June 2004 opinion letter submitted by Dr. S.S., where he indicated that the Veteran has a veiled palate with an elongated uvula hypertrophic tongue, the examiner indicated that these are pathophysiological aspects of sleep apnea, and that the medical literature provided by Dr. S.S. does not prove that PTSD is the cause of veiled palate or hypertrophic tongue. In January 2005, the Veteran's private physician, Dr. S.G. submitted an opinion letter, stating that he has been treating the Veteran for PTSD for several years. Dr. S.G. reported that the Veteran has been experiencing an obvious increase in the frequency and intensity of the symptoms associated with his PTSD. Accordingly, Dr. S.G. noted that the Veteran experiences profound and frequent sleep disturbances, which impact both his daily health and his professional effectiveness. In September 2008, Dr. S.S. submitted another opinion letter, which stated that the August 2004 VA opinion contradicts the authority which the opinion is based upon. Specifically, Dr. S.S. reiterated that the Veteran has a veiled palate with an elongated uvula and a laterally-scalloped hypertrophic tongue, which crowd his oropharngeal and hypopharyngeal airway. He also noted, that on either oral or nasal breathing, the Veteran's soft palate vibrates excessively; specifically, mucosal and submucosal elements of his inferior turbinates are hypertrophic, and mucosa of his nasal turbinates are significantly edematous, boggy, and pale. Dr. S.S. further indicated that these are precisely the type of "anatomically narrowed upper airways" that cause patients to become "predisposed to the development of obstructive sleep apnea." Moreover, Dr. S.S. reported, that in this particular instance, all the Veteran needs is another factor to "precipitate or worsen the condition." Furthermore, Dr. S.S. stated, that this factor is PTSD, as relevant peer- reviewed scientific literature amply confirms that a well- established factor which could "precipitate or worsen the condition" (obstructive sleep apnea) is PTSD. In addition, noting that the Veteran has never smoked, nor is he hypothyroid, Dr. S.S. indicated that the Veteran's sleep apnea worsened with a common cold but plagues him all the time. Dr. S.S. concluded that it is at least as likely as not that the Veteran's obstructed sleep apnea is exacerbated by, and associated with his service-connected PTSD. Dr. S.S. also included a sampling from a computerized National Library of Medicine search, which, based upon his opinion, provided an established relationship between obstructive sleep apnea and PTSD. In February 2009, in response to the Board's request for an expert medical opinion, VA Dr. J.H. provided a medical advisory opinion regarding whether sleep apnea is worsened by PTSD. Upon review of the Veteran's claims file, as well as, the National Library of Medicine search, the Dr. indicated that there are studies and opinions which support an association of PTSD and sleep apnea, specifically, that sleep apnea can be made worse with a PTSD diagnosis and that sleep apnea improves with the successful treatment of PTSD. He indicated that there is no clinical research that supports the conclusion that PTSD is the cause of sleep apnea. Dr. J.H. noted that sleep apnea is a multifactorial disease, indicating that other mitigating factors such as alcohol intake and obesity are significant contributors to the etiology of obstructive sleep apnea. Thus, he reported, that it is not possible for a clinician to estimate the degree of increased symptoms, even without other etiological factors involved, such as obesity. In conclusion, the Dr. opined, there is no research which supports the Veteran's claim, that the cause of his sleep apnea is PTSD, however, there is evidence that his sleep apnea can be made worse by his PTSD. The February 2009 VA opinion was offered following an objective evaluation of the Veteran's medical history and treatment, and was accompanied by supporting rationale. The October 2003 VA opinion, although provided after a review of the record and examination of the Veteran, was essentially a bare conclusion, devoid of any explanation. The August 2004 VA opinion was offered based upon the 43rd edition of Current Diagnosis and Treatment (2004), by Lawrence Tierney, M.D., Maxine Papadakis, M.D., and Stephen Mcpahee, M.D, however, it did not consider the Veteran's medical history and treatment. Furthermore, the September 2008 private opinion rendered by Dr. S.S. provided an extensive rationale as to why the August 2004 VA opinion contradicts the authority which the opinion is based upon. Moreover, Dr. S.S. provided supporting literature, that showed a relationship between sleep apnea and PTSD, with which the February 2009 VA Dr. ultimately concurred. After a review of the evidence, the Board considers the opinions rendered by the February 2009 VA examiner and the private physician in September 2008 to be the most competent and probative evidence of record on the question of whether the Veteran's current sleep apnea is related to his service- connected PTSD. Therefore, secondary service connection is warranted for the Veteran's sleep apnea by aggravation due to his service-connected PTSD. (CONTINUED ON NEXT PAGE) ORDER Service connection by for sleep apnea is granted. ____________________________________________ HOLLY E. MOEHLMANN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs