Citation Nr: 1606207	
Decision Date: 02/18/16    Archive Date: 03/01/16

DOCKET NO.  09-12 248	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington


THE ISSUE

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


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

M. Moore, Counsel



INTRODUCTION

The Veteran served on active duty from August 1969 to May 1977 with service in the Republic of Vietnam.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington.  

In a June 2012 decision, the Board denied the Veteran's OSA claim.  The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court).  In February 2013, the Court issued an order granting a February 2013 Joint Motion for Remand (JMR).  The Board again denied the claim in November 2013 and the Veteran again appealed this denial to the Court.  In February 2015, the Court issued a Memorandum Decision, vacating the denial and remanding the claim to the Board.  The Board remanded the claim to the Agency of Original Jurisdiction (AOJ) in June 2015.  This issue has subsequently been returned to the Board.


FINDING OF FACT

The Veteran's currently diagnosed OSA was as likely as not caused or aggravated by his service-connected PTSD.


CONCLUSION OF LAW

Obstructive sleep apnea was caused or aggravated by a service-connected disability.  38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2015); 38 C.F.R. §§ 3.303, 3.310 (2015).




REASONS AND BASES FOR FINDING AND CONCLUSION

As the Veteran's claim is being granted, any error related to the VCAA is moot.  38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2015); 38 C.F.R. § 3.159 (2015); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

The Board obtained a medical opinion from the Veterans Health Administration (VHA) in October 2015 with a November 2015 addendum.  The VHA physician concluded that the Veteran's OSA was not caused or aggravated by his PTSD and that his PTSD did not cause or aggravate his obesity (causing or aggravating his OSA).  However, in addressing several articles submitted by the Veteran and his representative, the VHA physician explained that he reached this conclusion because the medical evidence did not provide conclusive proof of a correlation between sleep problems and obesity, only suggested such.  The Board notes that the legal standard for granting service connection is not as high as the VHA physician states.  Rather, it is only required that it is at least as likely as not that the Veteran's PTSD caused or aggravated his obesity.  In the conclusion of his November 2015 addendum opinion, the VHA physician notes that short sleep time leads to a more voracious appetite that may lead to weight gain.  Although he indicated that this correlation must be confirmed by larger studies, the Board finds this current evidence sufficient to meet the legal standard for service connection.

The Board notes that there are other VA opinions of record that do not support the Veteran's claim.  However, as the Board is granting service connection, any further discussion of negative evidence is irrelevant.

In light of the October/November 2015 VHA physician's suggestion for a further opinion from a mental health and sleep medicine specialist, the Board has considered remanding the claim for an addendum opinion.  However, as the November 2015 addendum VHA opinion supports a medical nexus, the Board concludes that Remand is not necessary.  The evidence is, at minimum, in equipoise regarding the question of whether the Veteran's currently diagnosed OSA is related to his service-connected PTSD.  38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2015); 38 C.F.R. §§ 3.303, 3.310 (2015).  The benefit-of-the-doubt will be conferred in the Veteran's favor and his claim for service connection for OSA is granted.  38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2015); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

Entitlement to service connection for obstructive sleep apnea is granted.



____________________________________________
MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs