Citation Nr: 1337634	
Decision Date: 11/18/13    Archive Date: 11/26/13

DOCKET NO.  07-17 951	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUE

Entitlement to service connection for sleep apnea, to include as secondary to service connected posttraumatic stress disorder (PTSD), vascular disabilities and hypertension.  


REPRESENTATION

Veteran represented by:	Oregon Department of Veterans' Affairs


ATTORNEY FOR THE BOARD

M. Taylor, Counsel





INTRODUCTION

This appeal was processed using the paperless claims processing system.  Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record.

The Veteran served on active military duty from April 1969 to December 1970.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Portland, Oregon Regional Office (RO) of the Department of Veterans Affairs (VA).  

In September 2011 and June 2013, the Board remanded the claim for additional development.  


FINDING OF FACT

Aggravation of nonservice-connected obstructive sleep apnea is attributable to service-connected PTSD.  


CONCLUSION OF LAW

The criteria for service connection for obstructive sleep apnea have been met.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §3.310 (2012).  


REASONS AND BASES FOR FINDING AND CONCLUSION

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  The Board is granting in full the benefit sought on appeal.  Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed.  

Service connection may be granted for disability resulting from disease or injury incurred or aggravated in service.  38 U.S.C.A. § 1110 (West 2002).  Service connection basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces.  38 C.F.R. §§ 3.303, 3.304 (2012).  Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d). 

The Veteran asserts entitlement to service connection for sleep apnea, to include as secondary to service-connected disability.  

The Veteran filed his claim for service connection for sleep apnea in November 2008.  Effective October 10, 2006, VA amended 38 C.F.R. § 3.310 to implement the decision in Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).  In Allen, the U.S. Court of Appeals for Veterans Claims explained that under 38 U.S.C.A. § 1110; 38 C.F.R. § 3.310(a), when aggravation of a veteran's nonservice connected disability is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation.  In essence, the revised 38 C.F.R. § 3.310(b) indicates that the "rating activity" must determine the extent of the service-connected disability by establishing a "baseline" level of severity and subtracting it from the level of severity after aggravation occurred.  

The Veteran's service-connected disabilities include PTSD, vascular disabilities, and hypertension.  

The April 2009 VA examiner stated that, although not a result of service-connected hypertension and vascular disabilities, the Veteran's sleep apnea is related to the underlying conditions.  While both the April 2009 and June 2010 VA examiners concluded that obesity is likely the main factor involved in Veteran s obstructive sleep apnea, noting it presented only after the Veteran's weight gain in approximately 2002, the June 2010 VA examiner stated that that it is at least as likely as not that the Veteran's obstructive sleep apnea, shown to be mild to moderate on polysomnogram in February 2010, was aggravated by service-connected PTSD.  The opinion is not inconsistent with the medical article pertaining to psychiatric disorders and sleep apnea submitted by the Veteran in July 2013 in which it is noted that sleep apnea is associated with a higher prevalence of psychiatric comorbid conditions.  

In September 2013, the Veteran's spouse stated that the Veteran is restless and tosses and turns during sleep.  She added that in May 2005, the Veteran woke up not being able to breathe and was afraid to go to sleep, and that worrying about stopping breathing during the night makes him tense and depressed.  

The June 2010 examiner stated that PTSD was the most likely reason the Veteran was unable to tolerate the APAP (automatic positive airway pressure) treatment for sleep apnea reflected in November 2008 VA treatment records.  Although the June 2010 VA opinion is to the effect that it is not possible to assess the degree to which PTSD aggravated sleep apnea without resorting to speculation, the examiner specifically concluded aggravation by service-connected PTSD, at least on a partial basis.  

The Board has determined that there is a baseline level of severity for obstructive sleep apnea established by competent medical evidence and attributable to service-connected PTSD, in part.  Thus, a finding in favor of service connection for aggravation of nonservice-connected obstructive sleep apnea is warranted.




ORDER

Service connection for obstructive sleep apnea is granted.  



____________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs