Citation Nr: 1342289 Decision Date: 12/20/13 Archive Date: 12/31/13 DOCKET NO. 13-12 222 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1979 until he retired in May 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2012 rating decision of the RO. Virtual VA paperless processing system reveals documents that are pertinent to this appeal, which have been reviewed. The Veterans Benefits Management System (VBMS) does not contain any pertinent documents. FINDING OF FACT The currently demonstrated sleep apnea is shown as likely as not to have had its clinical onset during the Veteran's period of active service. CONCLUSION OF LAW By extending the benefit of the doubt to the Veteran, his disability manifested sleep apnea is due to disease or injury that was incurred in active service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION To the extent that the action taken hereinbelow is fully favorable to the Veteran, further discussion of VCAA is not required at this time. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). In general, service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection is also warranted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for 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. 38 C.F.R. § 3.310(b). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). By way of a September 2009 rating decision, the RO granted service connection for PTSD and assigned a 30 percent evaluation. The Veteran contends that his current sleep apnea is secondary to or the result of his service-connected PTSD. See February 2010 informal claim. The Board notes that service treatment records are negative for complaints or findings referable to sleep apnea. The Veteran was first diagnosed with sleep apnea as shown by a private sleep study report in January 2010. However, a careful review of the VA treatment records show that the Veteran was seen in July 2000 with complaints of depression and difficulty in sleeping. In February 2006, when seen on an outpatient basis by VA, the Veteran's complaints included depression and difficulty sleeping. The VA treatment records from 2009 to 2013 confirm the diagnosis of and continued treatment for sleep apnea. An April 2010 VA treatment note indicates that the Veteran complained of having PTSD and sleep issues (nightmares and snoring). He indicated to the physician that he had PTSD and nightmares and had started recently on medication (terazosin) that caused headaches. A VA examination performed in June 2009 noted that the Veteran had chronic sleep impairment. In support of his claim, the Veteran has submitted lay statements (to include his wife's statement). The Veteran's wife indicated that she observed the Veteran's sleeping problems since he returned from service in the Persian Gulf. Prior to service, she noted, he had not snored. After returning from service, his wife testified that he was snoring loudly every night and, in addition, began to hold his breath and then suddenly gasp, along with tossing and turning at night. The Veteran submitted a letter from Dr. M.C. who opined that based upon the Veteran's personal history with PTSD and the development of obstructive sleep apnea, and in light of known studies (an October 31, 2010 CHEST publication), it was as likely as not that the Veteran's PTSD had a direct causative role in his sleep apnea. The Board accords Dr. M.C.'s letter limited probative value because there is no indication of what evidence she considered when formulating her opinion. The Veteran also independently submitted Internet articles discussing the link between sleep apnea and PTSD. The Veteran was afforded a VA examination in January 2012 in connection with his claim. The VA examiner ultimately offered a medical opinion that it was less likely than not that the sleep apnea was related to the service-connected PTSD. The examiner reasoned that while symptoms of PTSD could affect sleep and the literature showed associations between PTSD and sleep apnea, PTSD did not cause the upper airway obstruction which was what medically causes sleep apnea. The Veteran also submitted a letter from Dr. J.R.W. who indicated that he reviewed and considered the Veteran and his spouses' lay statements and the evidence available in formulating his opinion. Dr. J.R.W. noted that several studies regarding PTSD and the high prevalence of sleep disturbances in patients with psychiatric disorders. He stated that the association between the two was well recognized in the medical community and referred to the CHEST October 2010 article that highlighted a positive association sleep disorders and PTSD. In addressing the issue of causation, Dr. J.R.W. explained that there had not been conclusive evidence establishing which caused the other as there was evidence showing that sleep apnea could worsen PTSD and also evidence that showed sleep apnea can remain an active condition even after successful treatment of PTSD. In applying medical principles and research to the facts of the Veteran's case, to include the account of no manifestation of sleep apnea symptoms prior to the onset of PTSD, the physician concluded that, even after successful treatment of the PTSD, it was at least as likely as not that the service-connected PTSD contributed to or aggravated his subsequent development of sleep apnea. VA is to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. 38 U.S.C.A. § 1154. The Federal Circuit held that medical evidence is not always or categorically required in every instance to establish the required nexus or linkage between the claimed disability and the Veteran's military service. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Citing its previous decisions in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) and Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit stated in Davidson that it has previously and explicitly rejected the view that competent medical evidence is always required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. See id. at 1316. In this sense, the Board acknowledges that lay persons are competent to testify as to their observations, such as the onset of when the Veteran's sleeping problems began and how such symptomatology manifested (e.g., whether the sleep disorder symptoms manifested in tandem in PTSD symptomatology, such as nightmares). The Board finds such lay statements of record to be competent and credible. Considering the entire record, including the competent and credible lay assertions, the Board finds that the evidence to be at least in relative equipoise in showing as likely as not that the current sleep apnea as likely as not had its clinical onset during the Veteran's extensive period of active service. See 38 C.F.R. § 3.310 (2013). In resolving all reasonable doubt in the Veteran's favor, service connection for sleep apnea is warranted. 38 U.S.C.A. §5107(b); 38 C.F.R. § 3.102. ORDER Service connection for sleep apnea is granted. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs