Citation Nr: 1234375 Decision Date: 10/03/12 Archive Date: 10/11/12 DOCKET NO. 10-14 684 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for sleep apnea as secondary to service-connected disabilities. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD Sara Schinnerer, Associate Counsel INTRODUCTION The Veteran had active service from October 1971 to August 1975. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a June 2009 rating action of the Department of Veterans Affairs (VA), Regional Office (RO) in Muskogee, Oklahoma. The Veteran requested a video conference hearing before the Board in April 2010. He was scheduled for an August 2011 hearing; however, withdrew his request for such hearing in July 2011. FINDING OF FACT The competent medical evidence shows a relationship between the Veteran's sleep apnea disability and his service-connected posttraumatic stress disorder disability. CONCLUSION OF LAW The criteria for service connection for a sleep apnea disability have been met. 38 U.S.C.A. §§ 1110, 1113, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance Sufficient evidence is of record to grant the Veteran's claim of entitlement to service connection for a sleep apnea disability. Accordingly, whether or not VA has met its duties of notice and assistance is of no consequence, as there is no prejudice to the Veteran. Service Connection Law and Regulations Service connection may 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). To establish entitlement to service connection on a secondary basis, there must be competent medical evidence of record establishing that a current disability is proximately due to or the result of a service-connected disability. See Lathan v. Brown, 7 Vet. App. 359, 365 (1995). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Discussion The Veteran contends that his current sleep apnea disorder is due to his service-connected posttraumatic stress disorder (PTSD) disability, to include medications prescribed to treat such disability, or due to his service-connected left knee disability. The evidence does not show, nor does the Veteran allege, that his sleep apnea disorder was incurred in service. In a May 2008 rating decision, service connection was granted and an initial 50 percent rating assigned for PTSD, effective March 2007. A July 2009 private treatment record shows the Veteran underwent a sleep study which resulted in a diagnosis of obstructive sleep apnea syndrome. The physician noted the Veteran's diagnosis of PTSD, indicating that it was questionable as to whether the Veteran's PTSD was a component of his sleep apnea. A November 2009 VA outpatient treatment record demonstrates the Veteran sought treatment for several health issues, to include sleep apnea. A December 2009 VA outpatient treatment record notes the Veteran used a CPAP machine, however, with unclear benefits. The Veteran reported that he saw a sleep specialist five times and was told that the actual problem may be PTSD related. He further stated that he (without consulting a physician) reduced his dosage of citalopram (PTSD medication) to 20 mg daily, which has helped him sleep. The Veteran underwent a VA examination in February 2011 which resulted in a diagnosis of obstructive sleep apnea. Upon review of the claims file, the examiner opined that the Veteran's sleep apnea was at least as likely as not a result of a medication reaction to citalopram prescribed for his PTSD disability. The examiner, however, noted that the Veteran reported that he stopped taking citalopram, and felt that his sleep apnea symptoms had resolved. In an April 2011 addendum to the February 2011 VA examination, the February 2011 VA examination changed the Veteran's diagnosis of obstructive sleep apnea, to a history of obstructive sleep apnea. Significantly, the February 2011 VA examiner did not perform a sleep study on the Veteran, and based his initial diagnosis of obstructive sleep apnea upon the July 2009 private sleep study discussed above. Although the most recent VA examination found that the Veteran did not have any diagnosable sleep disorder, the requirement for a current disability is satisfied if there is evidence of the disability at any time since the Veteran's claim for service connection in April 2009, even if the disability is currently in remission. McClain v. Nicholson, 21 Vet. App. 319 (2008). The July 2009 private sleep study includes a diagnosis of obstructive sleep apnea syndrome, and the physician indicated that it was questionable as to whether the Veteran's PTSD was a component of his sleep apnea. Moreover, November 2009 and December 2009 VA outpatient treatment records show the Veteran sought treatment for sleep apnea. Thus, under McClain, the requirement that the Veteran have a current disability is satisfied. The February 2011 VA examination report supports a grant of service connection for the Veteran's sleep apnea disorder, as the examiner indicated that the condition was caused by a medication reaction to citalopram prescribed for his PTSD disability, and that opinion is the only competent medical opinion of record that addresses the issue of causation. Moreover, although the examiner did not perform a sleep study on the Veteran, he reviewed the July 2009 private sleep study, and based his initial diagnosis of obstructive sleep apnea on such study. Finally, the aforementioned December 2009 VA outpatient treatment record notes the Veteran's continued use of citalopram, a prescribed medication for his PTSD disability. Service connection for a sleep apnea is warranted. ORDER Service connection for sleep apnea is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs