Citation Nr: 1316035 Decision Date: 05/15/13 Archive Date: 05/29/13 DOCKET NO. 08-00 309 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas 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: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his ex-spouse ATTORNEY FOR THE BOARD A. C. Mackenzie, Senior Counsel INTRODUCTION The Veteran had periods of active service from June to July of 1998, from February to October of 2000, and from August 2004 to January 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Following an October 2011 Travel Board hearing, the Board remanded this case in March 2012. The Board subsequently obtained two Veterans Health Administration (VHA) opinions in January and February of 2013. In a submission received by the Board in March 2013, the Veteran indicated that he did not wish to waive RO consideration of the evidence and requested that the claim be remanded. The Board will proceed with this claim, however, in light of the fully favorable disposition below. The Board has recharacterized this issue in this decision, relative to the March 2012 remand. At that time, the Veteran was noted to be claiming "sleep apnea, to include obstructive sleep apnea." Subsequently received evidence, however, clearly reflects a current obstructive sleep apnea diagnosis. Moreover, such evidence is also focused on the claimed secondary relationship between obstructive sleep apnea and PTSD. The issue as currently characterized reflects this. FINDING OF FACT There is competent medical evidence of record indicating that the Veteran developed upper airway resistance syndrome as a consequence of his service-connected PTSD and that such resistance led to the development of obstructive sleep apnea. CONCLUSION OF LAW Obstructive sleep apnea was incurred as secondary to the service-connected PTSD. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In the current appeal, the Board has considered whether VA has fulfilled its notification and assistance requirements, found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Given the Board's fully favorable disposition of the matter on appeal, however, no further notification or assistance in developing the facts pertinent to this limited matter is required at this time. Indeed, any such action would result only in delay. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, disability which is proximately due to, or results from, another disease or injury for which service connection has been granted shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice-connected disease or injury 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 disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). In this case, the Veteran has asserted, through his October 2011 hearing testimony, that his obstructive sleep apnea arose during his final period of active duty (August 2004 to January 2006). He has reported sleep problems in conjunction with emergency room treatment during that period. A review of the Veteran's service treatment records reveals no treatment for obstructive sleep apnea or other sleep symptoms during service, although he was seen for left-sided chest pain in February 2005 and shortness of breath in March 2005. Subsequent to service, in October 2006, the Veteran was seen at a private facility for complaints of difficulty breathing at night, with feeling sleepy during the day and snoring. A sleep study was performed, and the impression was of a patient with snoring and likely upper airway resistance syndrome. At that time, he did not have enough obstructive events to warrant the use of a continuous positive airway pressure (CPAP) machine or dental devices. It was noted that he might benefit from an ear/nose/throat evaluation to see whether treatment could be done to reduce snoring and arousals that may be associated with increased upper airway resistance. The Veteran was also noted to have some abnormality of his sleep stages, and might benefit from a trial of Rozerem. In March 2007, the Veteran underwent a VA respiratory examination. In the report of that examination, the examiner noted the following: [The Veteran] describes sleep disorder that maybe more related to psychological. He does have a history of weight gain and a stage IV pharynx, which could lead to a sleep disorder an[d] upper airway resistance syndrome. It would be likely he [will] develop sleep apnea in the future and it would be service connected since the upper airway syndrome may be prodrome for sleep apnea. A subsequent VA treatment record from March 2007 reflects the Veteran's reported ongoing problems with his sleep, with him "constantly on guard, troubled by choking on his saliva, also has nightmares, very easily startled, his wife has to wake him up from across the room or else she is afraid he might hit her." A recent sleep study was noted, and the examiner rendered an impression of upper airway resistance syndrome, a "clear precursor to sleep apnea," with associated desaturation of 88 percent. The examiner noted that this study might underestimate the severity of the Veteran's defects, since he did not have much rapid eye movement (REM) sleep or any deep wave sleep in it. It was noted that the Veteran would embark on a trial of nasal autoCPAP. A January 2008 VA treatment record contains an assessment of obstructive sleep apnea and indicates the current use of a CPAP machine. The examiner also noted an outside sleep study with upper airway resistance syndrome, "a 'clear precursor to sleep apnea,'" with associated desaturation of 88 percent. In December 2010, it was noted that the Veteran's CPAP machine had been broken during a move eight months earlier and that he was "again waking up feeling unrefreshed." An impression of mild obstructive sleep apnea with desaturation, off CPAP for 8 months, was rendered. Subsequent to the Board's remand, the Veteran underwent a VA examination in July 2012, with an examiner who reviewed the claims file. The examiner confirmed the diagnosis of obstructive sleep apnea, requiring continuous medication and a CPAP machine. The examiner found that the current diagnosis was less likely as not (less than a 50/50 probability) caused by, a result of, or related to service or to another disability. The examiner noted that there was no indication of a sleep apnea diagnosis or treatment, or a sleep disorder or treatment of a sleep disorder, found in the service records. As to secondary service connection regarding PTSD, the examiner noted that there "is association that patients with psychiatric disorders and coincident symptoms suggesting sleep-disordered breathing should be evaluated for sleep apnea," but PTSD was not known to cause sleep apnea. Due to concerns about the July 2012 medical opinion, the Board referred this case for VHA opinions from a psychiatrist and a pulmonologist in December 2012. In January 2013, an opinion was received from a VHA psychiatrist who had reviewed the claims file, including the October 2006 private sleep study and the VA examination reports from March 2007 and July 2012. The psychiatrist provided the opinion that the findings from March 2007 were "reasonable and consistent with what was known." He noted that upper airway resistance "can be a precursor to sleep apnea." As such, the sleep apnea subsequently confirmed in 2012 "should be considered service connected." Furthermore, a study conducted at the Walter Reed Medical Center and published in 2010 (two years before the July 2012 examination) documented increased sleep apnea in combat veterans with PTSD (54 percent of those who underwent sleep studies were diagnosed with obstructive sleep apnea, whereas in the general population the rate for obstructive sleep apnea was 20 percent). An opinion was also obtained from a VHA pulmonologist in February 2013. The pulmonologist reviewed the Veteran's records and found that the sleep apnea was not likely related to or secondary to service or to PTSD. The pulmonologist noted the Veteran's early symptoms of PTSD, as well as heavy drinking, and indicated that it would be difficult to isolate sleep apnea. The Veteran's 30 to 40 pound weight gain in early 2007 was also noted to be a major risk factor for developing sleep apnea, particularly with the heavy alcohol consumption. The pulmonologist noted the March 2007 VA examiner's opinion as to a "psychological" sleep disorder but indicated that upper airway resistance syndrome (UARS) was a distinct entity from obstructive sleep apnea but also part of a spectrum of sleep disordered breathing. The diagnosis of UARS was made based on respiratory-effort related arousals with no hypoxemia, while the obstructive sleep apnea diagnosis was made with apneas, hypopneas, and associated oxygen desaturation. A recent article concluding that UARS and obstructive sleep apnea have distinct clinical differences was cited, and the pulmonologist noted that the question of whether UARS can lead to obstructive sleep apnea remained unresolved, with more systematic longitudinal studies needed. Finally, the pulmonologist noted that, given the current published data for PTSD and obstructive sleep apnea, there was no definitive evidence for cause and effect. The pulmonologist cited several studies to support the conclusion that there was no clear-cut evidence to support the finding that obstructive sleep apnea was aggravated by PTSD. Separately, the pulmonologist further noted that there was an ongoing VA study to try to determine a possible link between PTSD and obstructive sleep apnea and to determine if treatment of obstructive sleep apnea would improve symptoms of PTSD. The Board is aware that the Veteran has asserted that his obstructive sleep apnea was incurred in service. There is no indication of treatment for obstructive sleep apnea symptoms in service, however, and both the July 2012 VA examiner's opinion and the February 2013 VHA pulmonologist's opinion indicate no causal relationship between obstructive sleep apnea and service. The Board therefore finds no basis for service connection for obstructive sleep apnea on a direct service connection theory. The evidence is more mixed as to the question of a causal relationship between obstructive sleep apnea and the service-connected PTSD. Both the July 2012 VA examiner's opinion and the February 2013 VHA pulmonologist's opinion weigh against this finding, but are less than definitive in nature. The July 2012 VA examiner cited to an association between psychiatric disorders and coincident sleep symptoms, while stating in a conclusory fashion that PTSD was not known to cause sleep apnea. Similarly, the February 2013 VHA pulmonologist cited to studies indicating the absence of clear-cut evidence of aggravation of obstructive sleep apnea by PTSD, while also referring to an ongoing study addressing the possible link between PTSD and obstructive sleep apnea. While this evidence is ultimately unfavorable, it is less than definitive in nature. The favorable evidence of record is rather more definitive in nature. The March 2007 opinion was rendered without a corresponding diagnosis of obstructive sleep apnea, but with the examiner finding a sleep disorder that could be "more related to psychological" and noting a likelihood of sleep apnea in the future that would be service connected because of the upper airway syndrome as a precipitating factor. The January 2013 psychiatrist's opinion indicates that the March 2007 opinion was reasonable and that, as upper airway resistance could be a precursor to sleep apnea, the Veteran's own sleep apnea should be considered service connected. Significantly, this psychiatrist cited a medical study indicating a substantially higher rate of increased sleep apnea in combat veterans with PTSD than in the general population. Given this clearly articulated belief that the Veteran's obstructive sleep apnea should be service connected, the Board accords this favorable evidence more probative value than the less definitive unfavorable evidence. Overall, after accepting and relying upon the favorable evidence of record, the Board finds that the narrative that emerges in this case is that the Veteran's PTSD led to an initial upper airway resistance syndrome that was shown to be a direct precursor to the subsequently diagnosed obstructive sleep apnea. The Board is thus satisfied not only that an etiological relationship between obstructive sleep apnea and PTSD has been shown but that the relationship was more in the nature of direct causation and not mere aggravation. For these reasons, the Board finds that service connection for obstructive sleep apnea as secondary to PTSD has been established on the basis of incurrence. The claim is thus granted in full. ORDER Service connection for obstructive sleep apnea, incurred as secondary to service-connected PTSD, is granted. __________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs