Citation Nr: 1804836 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-21 238 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Harper, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1968 to April 1979 in the United States Army, with additional periods of service in the Army Reserves. His many service awards and decorations include the Combat Infantryman badge and Purple Heart medal. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a November 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In June 2017, the Veteran testified before the undersigned Veterans Law Judge via videoconference hearing. A copy of the hearing transcript is of record and has been reviewed. At the hearing, he submitted additional evidence along with a waiver of initial RO consideration. FINDING OF FACT The Veteran's currently diagnosed obstructive sleep apnea is etiologically related to his service-connected PTSD disability. CONCLUSION OF LAW The criteria to establish service connection for obstructive sleep apnea on a secondary basis have been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.102, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Pertinent Service Connection Laws and Regulations Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a 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, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a 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. § 5107(b); 38 C.F.R. § 3.102. Service Connection Analysis for Obstructive Sleep Apnea The Veteran maintains that his obstructive sleep apnea had its onset in service or, in the alternative, that it is secondary to his service-connected PTSD disability. See June 2014 VA Form 9 and June 2017 Board hearing. Given the favorable nature of the Board's decision on a secondary basis, it is unnecessary to address a theory of direct service connection. Initially, the Board finds that the Veteran has been diagnosed with obstructive sleep apnea. See December 2011 VA polysomnography and January 2012 VA sleep medicine diagnostic study report. Moreover, the Veteran is currently service connected for PTSD with alcohol abuse disorder. See June and November 2012 rating decisions. The Veteran testified at a Board hearing in June 2017 that his sleep apnea is related to his service-connected PTSD. The Veteran based his opinion on the fact that he did not have sleep problems before he entered active service. He also reported that, at the time of the Board hearing, he had trouble breathing at night while he slept. He attributed his trouble breathing to physically acting out nightmares of his combat experience in Vietnam. VA treatment records indicate that the sleep apnea, parasomnia, insomnia, and PTSD are interrelated. Additionally of record, the Veteran reported significant sleep disturbances from nightmares and fragmented sleep due to the service-connected PTSD. See September 2012, January 2013, and May 2014 VA treatment records. The evidence also includes a June 2017 medical opinion authored by the Veteran's VA psychiatrist who opined that it was at least as likely as not that the Veteran's sleep apnea was a result of the service-connected PTSD. This psychiatrist treated the Veteran at VA for his PTSD and is familiar with this Veteran, his symptomatology and resultant disorders, and his medical history. The VA psychiatrist's opinion was based on recurring treatment of the Veteran, a review of his service-connected disabilities, and a review of the Veteran's medical history. The Board finds the sole opinion of record from the Veteran's VA psychiatrist to be highly probative as to whether the Veteran's sleep apnea is secondary to his service-connected PTSD disability. The VA psychiatrist reviewed the Veteran's medical history, reviewed the Veteran's treatment records, reviewed his service-connected disabilities, and provided a positive medical opinion. The Board has reviewed the remaining evidence of record and finds no contrary medical opinion. In light of the evidence of a current diagnosis of sleep apnea and the probative, favorable medical opinion, the Board finds that the Veteran's sleep apnea is etiologically related to his service-connected PTSD disability. Service connection for obstructive sleep apnea is therefore warranted on a secondary basis. See 38 C.F.R. §§3.102, 3.310. ORDER Service connection for obstructive sleep apnea, as secondary to service-connected PTSD, is granted. ____________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs