Citation Nr: 1340663 Decision Date: 12/09/13 Archive Date: 12/20/13 DOCKET NO. 10-26 747 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES Entitlement to service connection for sleep apnea, including as secondary to service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Michael Wilson, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1975 to March 1977, from December 1990 to June 1991, and from January 2003 to December 2003. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which, in relevant part, denied the benefit sought on appeal. The Board remanded the Veteran's claim on appeal for further evidentiary development in January 2012 and April 2013. In the January 2012 decision, the Board additionally denied entitlement to service connection for a skin disorder of the face and neck. The Board also remanded a claim of entitlement to service connection for a bilateral hip disorder, however, the Agency of Original Jurisdiction granted that claim in an October 2012 rating decision. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran has sleep apnea that has been permanently aggravated by his service-connected PSTD. CONCLUSION OF LAW The criteria for service connection for sleep apnea, as secondary to service-connected PTSD, have been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board grants entitlement to service connection for sleep apnea as secondary to the Veteran's service-connected PTSD. As this represents a grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist pursuant to the Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002), is necessary. I. Governing Law and Regulations Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). Establishing service connection requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Walker v. Shinseki, 701 F.3d 1331 (Fed. Cir. 2013); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Service connection may be also granted on a secondary basis for a disability that is proximately due to or the result of an established service-connected disorder. See 38 C.F.R. § 3.310(a) (2013). A claim for secondary service connection generally requires competent evidence of a causal relationship between the service-connected disability and the non-service-connected disease or injury. See Jones (Wayne L.) v. Brown, 7 Vet. App. 134 (1994). There must be competent evidence of a current disability; evidence of a service-connected disability; and medical evidence of a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Similarly, any increase in severity of a non-service-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 non-service-connected disease, will be service connected. See 38 C.F.R. § 3.310(b) (2013); Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service-connected disease or injury is said to have been aggravated by the service-connected disease or injury. See 38 C.F.R. § 3.310(b) (2013). In cases of aggravation of a Veteran's non-service-connected disability by a service-connected disability, the Veteran shall be compensated for the degree of disability above the established baseline severity of disability existing before aggravation. Id. In making all determinations, the Board must fully consider the lay assertions of record. Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009). A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. See 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). II. Analysis The Veteran has advanced two theories of entitlement to service connection for sleep apnea. First, in his March 2010 VA Form 9, he suggests that a direct relationship existed between sleep apnea and his service by contending that his sleep "had not been good" since his time on active duty. In the alternative, the Veteran contended in his November 2007 informal claim that his sleep apnea was caused by service-connected PTSD. His representative further contended that the Veteran turned to alcohol consumption as a result of his PTSD, thus aggravating his sleep apnea. While the level of his alcohol consumption is inconsistently reported in the record, the Board accepts that alcohol consumption is a component of the Veteran's PTSD symptomatology. The evidence of record clearly shows that the Veteran currently suffers from sleep apnea. Notably, a June 2007 private polysomnogram report diagnosed moderate non-positional obstructive sleep apnea with sleep fragmentation and episodes of hypoxemia. Treatment for sleep apnea is consistently shown in the record. Notably, during a June 2008 VA primary care consultation, the Veteran requested a continuous positive airway pressure (CPAP) machine. A February 2009 sleep study revealed that treatment with a CPAP machine improved his sleep apnea. Based on this evidence, the current disability requirement for service connection for sleep apnea is satisfied. See Walker, supra; Wallin, supra. The Veteran's service treatment records (STRs) are devoid of any indication that he was diagnosed with or treated for sleep apnea during his active service. Sleep problems were not documented in January and June 2004examinations conducted in association with the Veteran's Reserve service. Post-deployment surveys dated in November and December 2003 indicate that the Veteran denied ever still feeling tired after sleeping. His STRs do reveal, however, that he was found to suffer from chronic headaches near the time of his separation from active duty. The apparent date of onset was approximately February or March 2003. Post-service treatment records reveal that the Veteran complained of disrupted sleep as early as during an April 2007 VA mental health consultation. With respect to the direct service connection component of the Veteran's service connection claim, the evidence of record fails to establish that he suffered from sleep apnea during service. Moreover, as will be discussed, there is no medical evidence of record to show that the Veteran incurred sleep apnea directly as a result of his service. With respect to the Veteran's specific contention that his PTSD caused or aggravated his sleep apnea, while the Veteran has been noted in VA mental health treatment records to have disturbed sleep and nightmares, no specific association with sleep apnea has been noted. The Veteran was afforded a VA examination to determine the nature and etiology of his sleep apnea in February 2012. After reviewing the record, the examiner provided the opinion that the Veteran's sleep apnea was less likely than not related to his active service. The examiner noted that the Veteran had not been diagnosed with sleep apnea until 2007, after his separation from service. She additionally cited to the Veteran's January 2004 Reserve service examination, which did not include any findings of sleep problems, and his November 2003 post-deployment survey, which noted his denial of feeling tired after sleeping. The examiner further concluded that it was less likely than not that the Veteran's sleep apnea was proximately due to PTSD. Here, the examiner explained that while research was being conducted related to the question of whether or not PTSD is related to sleep apnea, no definitive cause and effect had been established. She also noted that there was no connection between PTSD medications and sleep apnea. Notably, the examiner did not adequately address the issue of whether or not the Veteran's sleep apnea was aggravated by PTSD, nor was she able to consider additional medical literature subsequently submitted by the Veteran's representative regarding a possible relationship between PTSD and sleep apnea. For these reasons, the Board sought an addendum opinion from the February 2012 VA examiner with respect to these concerns. In spite of the Board's specific requests for clarification, in a March 2013 addendum opinion, the same VA examiner merely provided a word for word copy of her prior opinions. No additional elaboration on her opinions or further rationale was provided. Based on this record, the Board requested a medical expert opinion from a healthcare professional in VA's Veterans Health Administration (VHA) as to whether it was at least as likely as not that the Veteran's sleep apnea was incurred during or as a result of his service; or, in the alternative, whether his sleep apnea was caused by or aggravated by service-connected PTSD. See 38 C.F.R. § 20.901(a) (2013). In September 2013, a VHA sleep specialist reviewed the lay and medical evidence of record, and provided the opinion that it was less likely than not that the Veteran's sleep apnea occurred during or as a result of his active service. In support of this opinion, the VHA specialist noted that the Veteran's sleep apnea was not diagnosed until the year 2007. The specialist additionally determined that the Veteran did not manifest symptoms of snoring, or of daytime fatigue or sleepiness during service. Additionally, the examiner noted that earlier reported headaches were not a cardinal symptom of sleep apnea. The VHA specialist further opined that it was less likely than not that the Veteran's sleep apnea was caused, in whole or in part, by his service-connected PTSD, including as a result of noted alcohol consumption. Here, the specialist noted that there was a high prevalence of psychiatric comorbid diagnosis in patients with sleep apnea. Specifically, the prevalence of PTSD was determined to be more than twice as common in patients with sleep apnea that those without, with a prevalence of alcohol dependence similar between the two groups. However, the specialist noted that the study only showed an association between sleep apnea and PTSD, and did not support a causative role for PTSD and sleep apnea. Additionally, the specialist noted that cardinal symptoms such as insomnia and nightmares, as reported by the Veteran, were common in PTSD, but uncommon in sleep apnea. Finally, the VHA specialist provided the opinion that it was more likely than not that the Veteran's sleep apnea may have been aggravated by his service-connected PTSD and attendant use of alcohol. In this regard, the specialist noted that symptoms of insomnia and nightmares can cause sleep disturbance leading to sleep deprivation that may aggravate sleep apnea. Additionally, the specialist noted that alcohol, commonly used to treat insomnia, can suppress upper airway muscle tone and have an adverse impact on sleep quality, thus aggravating sleep apnea. The Board finds that the VHA sleep specialist provided a well informed, well reasoned, and fully articulated opinion addressing relevant theories of service connection for the Veteran's sleep apnea. See Nieves-Rodriguez v. Peake, 22 Vet. App. 29, 303-304 (2008). While the VHA specialist's report did not support a finding of direct service connection, or a finding that the Veteran's sleep apnea was caused by service-connected PTSD, an opinion in the report clearly supports a finding that the Veteran's sleep apnea was aggravated by his service-connected PTSD, including by means of alcohol consumption. See Walker, supra; Wallin, supra. Based on the foregoing evidence, the Board finds that all elements of service connection for sleep apnea, as secondary to service-connected PTSD, have been met. The Veteran currently suffers from sleep apnea and the VHA specialist's cogent opinion determined that sleep apnea was at least as likely as not aggravated by service-connected PTSD. 38 C.F.R. § 3.310 (2013). Accordingly, all doubt with respect to this claim is resolved in favor of the Veteran and his claim for service connection for sleep apnea is granted on a secondary basis. 38 U.S.C.A. § 5107(b) (West 2002). In reaching this determination, the Board notes that in cases of aggravation of a non-service-connected disability by a service-connected disability, a claimant shall be compensated for the degree of disability in excess of the degree of disability existing prior to aggravation. See 38 C.F.R. § 3.310(b) (2013). In the present case, the Board will consider the severity of the Veteran's sleep apnea at the time of his initial June 2007 polysomnogram as the baseline level of severity of his sleep apnea, as this is the earliest medical evidence establishing the severity of his sleep apnea between the onset of aggravation and more current evidence of increasing severity shown by the Veteran having requested treatment, by means of a continuous positive airway pressure (CPAP) machine, in June 2008. Id. ORDER Service connection for sleep apnea, as secondary to service-connected PTSD, is granted. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs