Citation Nr: 1332786	
Decision Date: 10/21/13    Archive Date: 10/24/13

DOCKET NO.  07-34 804	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

Entitlement to service connection for sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD). 


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

R.N. Poulson, Counsel






INTRODUCTION

The Veteran had active military service from September 1984 to April 1999, and a period of active duty for training (ACDUTRA) from July 2004 to April 2005.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.  In February 2007, the RO denied service connection for a respiratory disorder, to include allergic rhinitis.  In October 2011, the RO denied service connection for sleep apnea.

The Board must discuss all theories of entitlement raised by the Veteran or by the evidence of record.  Robinson v. Mansfield, 21 Vet. App. 545 (2008).  Accordingly, the sleep apnea claim has been recharacterized as noted on the title page to reflect the theory of secondary service connection, as well as the medical evidence of record and the Veteran's contentions.

In November 2012, the Board remanded the case for additional development. Following completion of the requested actions, as well as a continued denial of the Veteran's claims, the appeal was returned to the Board for further appellate review.

In April 2013, the Appeals Management Center (AMC) granted service connection for allergic rhinitis and assigned a 10 percent disability rating, effective April 16, 2005.  Therefore, because the Veteran was granted the full benefits he sought, and has not filed a notice of disagreement regarding his assigned effective dates or rating, his claim of entitlement to service connection for a respiratory disorder, to include allergic rhinitis, is no longer on appeal.  See AB v. Brown, 6 Vet. App. 35, 38 (1993). 

In July 2013, the Board requested a medical opinion from the Veterans Health Administration (VHA) in accordance with 38 C.F.R. § 20.901(a) (2013).  The requested opinion has been provided and has been associated with the claims file.  Although the VHA opinion has not yet been provided to the Veteran and his representative, as the Board is granting in full the benefit sought on appeal, this procedural error is deemed to be non-prejudicial to the Veteran.  See 38 C.F.R.
§ 20.903  (2013). 


FINDING OF FACT

The Veteran's sleep apnea is aggravated by his service-connected PTSD. 


CONCLUSION OF LAW

The criteria for service connection for 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, 3.310 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  The Veterans Claims Assistance Act of 2000 (VCAA)

The 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 and 3.326(a) (2013).  In light of the favorable action taken herein, discussion of whether VA has met its duties of notification and assistance is not required, and deciding the appeal at this time is not prejudicial to the Veteran.
 
II.  Service Connection

Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for any condition listed in 38 C.F.R. § 3.303(b).  Any condition not encompassed by Section 3.303 (b) requires a medical nexus.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d). 

To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability.  Hickson v. West, 12 Vet. App. 247, 252 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).  Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).  This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

Additionally, a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected.  When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.  38 C.F.R. § 3.310(a). 

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).
 
The Veteran contends that his currently diagnosed sleep apnea is related to his period of ACDUTRA.  In the alternative, he maintains that his sleep apnea is caused or aggravated by his service-connected PTSD. 

The Veteran has not demonstrated the expertise to comment on the etiology of his sleep apnea.  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 Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir.2007).

Accordingly, the Board requested a VHA opinion from a pulmonologist.  In August 2013, an opinion was provided by a licensed physician who specializes in sleep medicine.  After reviewing the claims file, this VHA examiner opined that the Veteran's current sleep apnea is not caused by his service-connected PTSD.  Nevertheless, the examiner found that "[t]he records support that posttraumatic stress disorder, if present, can aggravate obstructive sleep apnea to the extent that weight control issues post-service and adherence issues with therapy post-service may be related to posttraumatic stress disorder, and can thereby aggravate obstructive sleep apnea."  See August 2013 VHA Advisory Medical Opinion.

The Board recognizes that the VHA opinion is somewhat speculative, but finds that the opinion raises at least a reasonable doubt that there is a connection between the Veteran's currently diagnosed sleep apnea and his service-connected PTSD.  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).  The Board notes that the examiner is a specialist in sleep medicine.  As such, he is expertly qualified to comment on the etiology of the Veteran's sleep apnea.  See 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).  Moreover, while mindful that claims file review is not a general prerequisite for medical opinions, the Board considers it significant that the VHA examiner reviewed the claims file.  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 included the Veteran's obesity and poor CPAP compliance as noted in his VA treatment records.

The Board also recognizes that the VHA opinion does not specify the degree to which the Veteran's PTSD has aggravated his sleep apnea.  The Veteran's claim for service connection for sleep apnea as secondary to PTSD was filed after the October 2006 revision to 38 C.F.R. § 3.310.  The language in the revised version of 38 C.F.R. § 3.310 referencing baseline levels of disability potentially serves to bar compensation if such levels have not been demonstrated.  However, the question of the baseline level of disability is deemed to be a rating issue and does not preclude the grant of secondary service connection in this decision.  While it may impact whether a compensable evaluation may be awarded, this is not the question presently before the Board.  See Ferenc v. Nicholson, 20 Vet. App. 58 (2006) (discussing the distinction in the terms "compensation," "rating," and "service connection" as, although related, each having a distinct meaning as specified by Congress).

The Board has also considered reviewing this 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.

Thus, resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for sleep apnea as secondary to service-connected PTSD is warranted.   
See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).


ORDER

Service connection for sleep apnea as secondary to service-connected PTSD is granted.




____________________________________________
J.A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs