Citation Nr: 1312196 Decision Date: 04/12/13 Archive Date: 04/19/13 DOCKET NO. 08-17 407 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. Woodward Deutsch, Counsel INTRODUCTION The Veteran served on active duty from March 1952 to March 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, to which the claims file was temporarily brokered for adjudication. Jurisdiction of the Veteran's case was later transferred to the RO in Roanoke, Virginia. In a June 2010 decision, the Board denied the Veteran's claim of entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected PTSD. The Veteran appealed this denial to the United States Court of Appeals for Veterans Claims (Court). In a February 2011 Order, the Court granted a January 2011 Joint Motion for Partial Remand, vacating and remanding the June 2010 decision of the Board. The appeal was then returned to the Board, which issued a November 2011 Remand for development consistent with the terms of the Joint Motion and Court Order. Following the completion of the requested development, the case was returned the Board for additional appellate action. Upon further review, the Board determined that an opinion from a health care professional in the Veterans Health Administration (VHA) of the Department of Veterans Affairs was necessary to address the complex medical questions raised in the appeal. 38 C.F.R. §20.901(a), (d) (2012). Such a VHA opinion was received in January 2013, which prompted the Board to seek clarification in a March 2013 Addendum. The Board acknowledges that neither the VHA opinion nor the Addendum has been considered by the RO. However, such evidence does not require a waiver of initial review by the agency of original jurisdiction. See 38 C.F.R. §§ 20.903(a), 20.1304(c) (2012). In any event, the Veteran is not prejudiced by the Board's review of that evidence in the first instance as it has done so for the purpose of granting his claim in full. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The preponderance of the competent and credible evidence shows that the Veteran's currently diagnosed obstructive sleep apnea permanently increased in severity as a consequence of service-connected PTSD. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea as secondary to PTSD have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012), 3.310 (as in effect prior to Oct. 10, 2006). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In this decision, the Board grants service connection for the Veteran's obstructive sleep apnea. As this represents a complete award of the benefits sought on appeal, no further discussion of the duties to notify and assist is necessary. II. Service Connection The Veteran alleges that his service-connected PTSD caused or aggravated his obstructive sleep apnea. As such, he maintains that service connection is also warranted for the latter disability. In light of the Veteran's contentions, the Board will consider whether to grant service connection for his sleep apnea as secondary to his PTSD. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (holding that the Board is required to weigh all theories of entitlement raised either by the claimant or by the evidence of record as part of the non-adversarial administrative adjudication process). The Board has also considered reviewing his claim under a direct theory of entitlement. However, this has proven to be unnecessary as the evidence discussed herein is sufficient to warrant service connection on a secondary basis. Secondary service connection may be established for a disability that is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). In such instance, service connection shall be granted as secondary to the disability for which VA benefits were initially established. Id.; see Harder v. Brown, 5 Vet. App. 183, 187 (1993). The Veteran may also obtain compensation for the aggravation of a nonservice-connected condition by a service-connected disability. See 38 C.F.R. § 3.310(a) (2012); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). To prevail under a theory of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Moreover, any increase in the severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disability, will be itself service connected. 38 C.F.R. § 3.310(b). The Board is cognizant that the VA regulation pertaining to secondary service connection was amended, effective October 10, 2006. See 71 Fed. Reg. 52,744 (2006) (codified at 38 C.F.R. § 3.310). The revised regulation appears to place a heightened evidentiary burden on claimants seeking service connection based on aggravation. Specifically, the amendment requires claimants to produce evidence establishing a baseline level of disability for the nonservice-connected condition prior to the aggravation. Because this additional requirement renders the revised regulation more restrictive than its predecessor, and because the Veteran in this case submitted his claim before that revision was made, the Board will consider his appeal under the version of the law that existed prior to October 10, 2006. See, e.g., Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (new regulations cannot be applied to pending claims if they have impermissibly retroactive effects). In applying the relevant law to the specific facts at issue, the Board has a duty to assess the credibility and competency of all material evidence to determine its probative weight. See Dalton v. Nicholson, 21 Vet. App. 23, 36 (2007); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). This includes lay evidence, which may be considered competent if furnished by a claimant, or other witness, with knowledge of facts or circumstances perceived through the use of the five senses. 38 C.F.R. § 3.159(a); Layno, 6 Vet. App. at 470(a Veteran is competent to report on that of which he or she has personal knowledge). Thus, a layperson may be competent to report on the onset and continuity of his symptomatology. Id.; see also Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). Similarly, a layperson may be competent to report a history of diagnosis if (1) the medical issue is within his realm of knowledge, (2) he is reporting a contemporaneous medical diagnosis, or (3) his testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Kahana, 24 Vet. App. at 433; Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). For example, a layperson may speak to etiology in such circumstances where nexus is obvious merely through observation, such as a fall leading to a broken leg. Jandreau, 492 F.3d 1372, 1376-77. In this case, the Veteran has not demonstrated the expertise to comment on the etiology of his sleep apnea, which, unlike the cause of the broken leg contemplated in Jandreau, eludes lay observation. Id. Moreover, while the Veteran and his representative have argued that a correlation exists between sleep apnea symptoms and PTSD, neither party has the qualifications to draw such a medical conclusion. To the contrary, the relationship, if any, between the Veteran's sleep apnea and his PTSD, or any other aspect of his active service, is a matter that requires medical expertise to resolve. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) (holding that "[a]lthough the Veteran is competent to testify to the pain he has experienced since his [active service], he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with"). Accordingly, the Board has elicited multiple medical opinions in connection with the Veteran's appeal. The first such opinion was rendered in December 2011 by a VA clinician, who reviewed the claims file and noted the Veteran's history of obstructive sleep apnea, which had first been diagnosed in the 1980s. The clinician further noted that the Veteran had been prescribed a continuous positive airway pressure (CPAP) machine, which, by his own admission, he had not been using to treat his sleep problems. After observing that the Veteran did not take any other medications for his sleep apnea, the December 2011 VA examiner noted that this disorder was accompanied by persistent daytime hypersomnolence but did not include any other significant symptoms. The examiner then concluded that it was less likely than not that the Veteran's sleep apnea had been caused or aggravated in service as his claims file was devoid of any evidence of a sleep disorder during active duty or at separation. The examiner also opined that it was less likely than not that the Veteran's sleep apnea was proximately due to or the result of his service-connected PTSD. As a rationale for that opinion, the examiner noted that the Veteran's nonadherence to his CPAP treatment was a more likely source of aggravation of his sleep apnea than was his PTSD. The examiner further noted that none of the Veteran's recent mental health treatment records suggested a causal link between his current sleep problems and his service-connected psychiatric disability. Tellingly, however, the examiner declined to reconcile that finding with the particular mental health records that showed the Veteran's poor sleep quality to be associated with his PTSD. The examiner also declined to comment on the medical literature, which the Veteran and his representative had submitted, indicating that sleep complaints were "an essential component of the constellation of symptoms that make up PTSD." In light of the above examiner's omission of key medical facts and literature, the Board concluded that his December 2011 negative nexus opinion was inadequate to decide the Veteran's claim. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (stating that a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor's opinion); see also Nieves-Rodriguez, 22 Vet. App. at 301 (stating that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two). Accordingly, the Board sought a new medical opinion, this time from an expert somnologist. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA takes action to obtain a medical examination or opinion, even if not required to do so, an adequate one must be produced). The requested VHA opinion was rendered by a licensed physician who specialized in sleep disorders. After reviewing the entire evidence of record, this VHA examiner concluded that the Veteran's sleep apnea had neither arisen in service nor permanently worsened therein. Similarly, the VHA examiner opined that the Veteran's current sleep disorder had not been caused by his service-connected PTSD. Nevertheless, the examiner found that this service-connected disability had likely exacerbated the Veteran's sleep apnea symptoms. In this regard, the examiner noted that the Veteran's documented "difficulty complying with [his] CPAP [therapy] was itself causally related to the diagnosis of PTSD." See January 2013 VHA Advisory Medical Opinion. At the Board's invitation, the VHA examiner expanded upon his January 2013 findings in a March 2013 Addendum, which expressly accounted for the medical literature that the Veteran had submitted in support of his claim. In concluding that such literature was insufficient to establish a causal link between sleep apnea and PTSD, the VHA examiner noted that the cited study had been based on a single patient, whose use of CPAP therapy had led to an improvement in his PTSD symptoms. Such an isolated case, the VHA examiner reasoned, was not a valid basis to derive any conclusions with respect to the Veteran's own situation. Nevertheless, the VHA examiner conceded that subsequent medical studies had shown that veterans suffering from PTSD were significantly less likely than their counterparts to succeed in CPAP therapy. The reason for the veterans' difficulty, the VHA examiner continued, was that their PTSD-related nightmares and other sleep disturbances prevented them from tolerating the physical restrictions imposed by CPAP machines. In addition to acknowledging a correlation between PTSD and CPAP problems, the VHA examiner observed that the nocturnal symptoms underlying that psychiatric disorder overlapped with those of sleep apnea. Specifically, the examiner noted that, while PTSD also included daytime symptoms, which were not confined to the sleeping state, the somnambulistic disturbances it posed were the same manifestations associated with sleep apnea. As such, the VHA examiner reasoned that the "presence of one [disorder] made the other difficult to treat." Through this observation, the VHA examiner supported his previous opinion regarding the aggravating effect of the Veteran's service-connected PTSD on his sleep apnea. However, the examiner indicated that he could not determine the precise degree of aggravation that had occurred. In this regard, he noted that, because the Veteran had likely experienced symptoms of PTSD and sleep apnea for years prior to receiving his respective diagnoses, it was impossible "to determine for how long he had both disorders overlapping." By concluding that the Veteran's service-connected PTSD had aggravated his sleep apnea, the VHA examiner departed from the wholly negative nexus opinion rendered by the December 2011 VA examiner. The Board has already determined that this earlier opinion was inadequate for rating purposes. In contrast, the Board finds that the VHA examiner's findings are sufficient to adjudicate the Veteran's claim. See Guerrieri v. Brown, 4 Vet. App. 467 (1993); Gabrielson v. Brown, 7 Vet. App. 36 (1994) (noting that the credibility and weight to be attached to medical opinions are within the province of the Board as adjudicators); Wensch v. Principi, 15 Vet. App. 362, 367 (2001) (noting that, when confronted with conflicting medical opinion evidence, the Board can favor one opinion over another as long as it adequately explains its reasoning). In arriving at this determination, the Board observes that, in contrast with the initial VA examiner, the clinician who authored the January 2013 VHA opinion and March 2013 Addendum was a specialist in sleep medicine. As such, he was expertly qualified to comment on the etiology of the Veteran's sleep apnea. Id.; see also Black v. Brown, 10 Vet. App. 279, 284 (1997) (in determining the weight assigned to this evidence, the Board also looks at factors such as the health care provider's knowledge and skill in analyzing the medical data). Additionally, while that VHA examiner's initial opinion was somewhat conclusory in nature, his Addendum bolstered his blanket first impressions with a detailed rationale. Specifically, the Addendum explained how the nocturnal symptoms of the Veteran's PTSD had exacerbated the manifestations of his sleep apnea by making them more difficult to treat. As such, the Addendum lent crucial support to the VHA examiner's earlier finding that the Veteran's PTSD had worsened his sleep apnea. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). Moreover, while mindful that claims file review is not a general prerequisite for medical opinions, the Board considers it significant that, in this particular case, the VHA examiner had access to the most updated version of the record. As such, the Board presumes that the examiner took into account all pertinent evidence, both clinical and lay. See Marsh v. Nicholson, 19 Vet. App. at 385 (2005); see also Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2009) (applying the presumption of regularity to the competence of VA examiners). The Board's confidence in this regard is bolstered by the fact that the examiner referenced salient evidence that had been previously overlooked. This included the association between the Veteran's PTSD and the sleep complaints noted in his mental health treatment records. By displaying familiarity with such evidence, the VHA examiner effectively distinguished his findings from those of his predecessor, whose opinion, for the reasons previously noted, was inadequate to rate the Veteran's claim. See Barr, 21 Vet. App. at 312. The comparative weight of the VHA examiner's findings was further enhanced by his review of general medical literature, which the Veteran had submitted in support of his appeal but which the previous examiner had ignored. While the VHA examiner also discounted the value of that medical literature, he provided an explanation for why he found it to be unreliable in the Veteran's specific case. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (holding that factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). Moreover, the VHA examiner relied upon other published medical studies, which also favored the Veteran's claim by suggesting that similarly situated veterans with PTSD were at heightened risk for sleep problems posed by CPAP failures. By referencing such studies in support of his finding that the Veteran's own PTSD had aggravated his sleep apnea, the VHA examiner bolstered the overall evidentiary worth of his March 2013 Addendum. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008) (noting that review of pertinent medical literature is a factor to be considered in determining whether a medical expert has sufficient facts upon which to base an opinion). Having focused thus far on the probative aspects of the VHA examiner's Addendum, the Board recognizes that this opinion was also deficient insofar as it failed to specify the degree to which the Veteran's PTSD had aggravated his sleep apnea. While the VHA examiner did not ignore that question entirely, his response was so speculative as to be unworthy of the Board's reliance. See generally Obert v. Brown, 5 Vet. App. 30, 33 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (observing that evidence which is speculative, general or inconclusive in nature cannot support a claim). Nevertheless, the Board finds that this isolated deficiency does not undercut the evidentiary value of the VHA examiner's findings for the purposes of this appeal. That is because, as previously noted, the Veteran's claim was filed prior to October 2006 revision of 38 C.F.R. § 3.310. As such, he does not bear the heightened burden of establishing the baseline level of his sleep apnea prior to its aggravation by his service-connected PTSD. See 71 Fed. Reg. 52,744 (2006) (codified at 38 C.F.R. § 3.310). To the contrary, the Veteran need only establish that some degree of aggravation has occurred in this case. The VHA examiner's Addendum opinion is sufficient to meet that requirement. Accordingly, having concluded that the March 2013 VHA Addendum is the most probative medical opinion of record, the Board finds this opinion tilts the preponderance of the evidence in favor of Veteran's claim. As discussed above, the VHA examiner expressly determined that the Veteran's currently diagnosed obstructive sleep apnea was related to his service-connected PTSD on the basis of aggravation. Such findings of current disability, service-connected disease or injury, and medical nexus are sufficient to satisfy the three-prong test for secondary service connection under Wallin. Wallin, 11 Vet. App. 509, 512 (1998). Moreover, without detracting from the probative value of the VHA examiner's opinion, the Board finds that a grant of secondary service connection is also supported by the other evidence of record. This includes the medical literature, which the VHA examiner referenced regarding the heightened risk of CPAP problems and ensuing sleep impairment affecting other veterans with PTSD. Although insufficient to grant service-connection on a stand-alone basis, that medical literature, in combination with the VHA examiner's opinion, lends additional support to the Veteran's claim. See Mattern v. West, 12 Vet. App. 222 (1999); Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West, 11 Vet. App. 509 (1998) (medical literature, in combination with a VA examiner's findings, adds to the overall weight of evidence supporting appellant's claim). Also supportive of the Veteran's claim is his own account of ongoing sleep complaints coincident with nightmares and other symptoms of PTSD. The Veteran is competent to report a history of such complaints and symptoms, which lie within the realm of his personal experience. See Layno, 6 Vet. App. at 469. Moreover, the Board considers his account to be credible in the absence of any evidence to the contrary. See Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995). Further, while the Veteran himself is not competent to relate his sleep apnea to his PTSD, his reported symptoms nonetheless lend credence to the findings of the VHA examiner, who is competent to offer such an opinion. See generally Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Dalton v. Nicholson, 21 Vet. App. 23 (2007) (addressing the importance of lay evidence as a factor for consideration in VA medical opinions). In sum, the Board finds that the VHA examiner's findings, in tandem with the other competent and credible evidence of record, establishes that the Veteran's service-connected PTSD aggravated his obstructive sleep apnea such that service connection for that disability is also warranted. Accordingly, the Veteran's claim for service connection for obstructive sleep apnea is granted. All reasonable doubt has been resolved in the Veteran's favor in making this determination. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for obstructive sleep apnea, as secondary to PTSD, is granted. ____________________________________________ S.C. KREMBS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs