Citation Nr: 18143098 Decision Date: 10/18/18 Archive Date: 10/17/18 DOCKET NO. 16-23 001 DATE: October 18, 2018 ORDER Entitlement to service connection for sleep apnea, to include as secondary to service-connected posttraumatic stress disorder, is granted. REMANDED Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is remanded. FINDING OF FACT The evidence is in relative equipoise as to whether the Veteran’s current sleep apnea was secondarily caused or aggravated by his service-connected PTSD. CONCLUSION OF LAW Affording the Veteran the benefit of the doubt, the criteria for entitlement to service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1987 to October 1994, July 1998 to July 2001, and from April 2006 to March 2007. These matters are before the Board of Veterans’ Appeals (Board) on appeal from January 2015 and April 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Although, in his May 2016 Substantive Appeal, the Veteran only listed the PTSD claim, he also indicated that all issues listed in the Statement of the Case were in fact perfected on appeal. The Board will thus address the sleep apnea claim. Entitlement to service connection for sleep apnea, to include as secondary to service-connected PTSD. Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. §§ 1110, 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain disabilities, including arthritis, organic neurological disorders, and psychoses, are presumed to be serviced connected if manifested to a compensable degree within one year following service. 38 C.F.R. §§ 3.303, 3.307, 3.309. Under 38 C.F.R. § 3.310(a), service connection may 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. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In this case, the Board acknowledges that in an April 2015 VA examination report, the Veteran was diagnosed with obstructive sleep apnea. The examiner noted that the Veteran was not present for the examination, but his claims file and treatment records were reviewed. The VA examiner opined that it was less likely than not that the claimed sleep apnea was proximately due to or the result of the Veteran’s service-connected condition. The rationale was that medical literature supports that sleep apnea is a physiological mechanical dysfunction, characterized by abnormal pauses in breathing or instances of abnormally low breathing during sleep. The literature supports that risk factors for sleep apnea includes being overweight, male, and being African American. The examiner noted that the Veteran met all three of these criteria and concluded that the Veteran’s sleep apnea was not due to his PTSD. The Board notes that the VA examiner never addressed why the Veteran’s obstructive sleep apnea could not have been aggravated by his service-connected PTSD. In a subsequent June 2015 letter, the Veteran’s private psychiatrist noted that the Veteran was his patient. The private physician noted that there was medical literature that suggested that during rapid eye movement (REM), the muscles become paralyzed. The examiner noted that in patients who have PTSD, their sleep mechanisms are particularly dysfunctional. Additionally, it was noted that obstructive sleep apnea was often more common in REM sleep than in non-REM sleep because the decreased tone of muscles of the airway during REM sleep was more likely to lead to a potential or complete upper airway obstruction. The physician wrote that while PTSD might not cause sleep apnea, it might exacerbate the symptoms. This was because there is more REM sleep in people who have PTSD and because the apnea episodes happened during REM sleep due to the increase in the muscle tone of the airway. According to the physician, it could be argued that PTSD worsens sleep apnea. Based on this reasoning, the private physician concluded by opining that it was at least as likely as not that the Veteran’s sleep apnea was aggravated by his service-connected PTSD. Weighing the available evidence, the Board finds that the June 2015 opinion from the Veteran’s private physician, concluding that his service-connected PTSD had aggravated his obstructive sleep apnea, combined with the competent and credible lay statements from the Veteran, are of at least equal probative value to the April 2015 VA examiner’s negative nexus opinion. The Board thus finds that it is at least as likely as not that the Veteran’s sleep apnea is secondarily related to his service-connected PTSD. Accordingly, the criteria for service connection have been met, and the claim is granted. REASONS FOR REMAND Entitlement to an initial disability rating in excess of 30 percent for PTSD. The last VA examination the Veteran had to evaluate his PTSD was in June 2014. In his January 2015 Notice of Disagreement, the Veteran wrote that the VA examiner had not properly evaluated his PTSD. Additionally, in a June 2015 letter, the Veteran’s private physician wrote that it was at least as likely as not that the Veteran’s PTSD was aggravated by his sleep apnea. As the Board is granting service connection for the Veteran’s sleep apnea, a new VA examination is necessary to determine the current nature, extent, and severity of the Veteran’s service-connected PTSD. 38 C.F.R. § 3.159(c)(4). The matter is REMANDED for the following actions: 1. In accordance with the provisions of 38 C.F.R. § 3.159(c)(1), make efforts to obtain all VA and private treatment records concerning this claim. 2. Afford the Veteran a VA mental health examination, with a psychologist or psychiatrist, to ascertain the current severity and manifestations of his PTSD. The claims file must be reviewed by the examiner, to include the July 1991 statement from the Veteran’s treating psychiatrist and the June 2015 letter finding that his PTSD had been aggravated by his now-service-connected sleep apnea. The most up-to-date Disability Benefits Questionnaire must be employed. All opinions and conclusions must be supported by a rationale. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Abrams, Associate Counsel