Citation Nr: 18152857 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 16-42 562 DATE: November 27, 2018 ORDER Entitlement to service connection for sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT The evidence is in at least relative equipoise as to whether the Veteran’s sleep apnea was caused or aggravated by his service-connected PTSD. CONCLUSION OF LAW The criteria for secondary service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from June 1980 to June 2001. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was originally denied service connection for sleep apnea in a July 2014 rating decision. In the present case, new and material evidence concerning the claims was received within one year of the July 2014 rating decision in the form of a medical opinion from the Veteran’s psychiatrist. As this evidence is considered as having been filed in connection with the claim that was pending at the beginning of the appeal period, the July 2014 rating decision did not become final with respect to this issue. See 38 C.F.R. § 3.156(b). Accordingly, the claim remains pending, and is appropriately characterized as a de novo claim for service connection. Entitlement to service connection for sleep apnea, to include as secondary to service-connected posttraumatic stress disorder Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). Establishing service connection generally requires evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the claimed in-service disease or injury and the present disability. See, e.g., Shedden v. Principi, 381 F.3d 1163, 1166-67 (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) (en banc). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). The Veteran contends that his current diagnosed sleep apnea is related to active service, or alternatively, is caused or aggravated by his service-connected PTSD. The Veteran submitted a March 2015 letter from Dr. R.M., his VA treating psychiatrist. Dr. R.M. stated that obstructive sleep apnea is highly associated with psychiatric illness, and therefore opined that it was more likely than not that the Veteran’s sleep apnea developed secondary to his PTSD. See VA Memo, dated March 5, 2015. The Veteran also submitted medical literature in March 2015, addressing in pertinent part, the relationship between PTSD and obstructive sleep apnea. See Correspondence, dated March 5, 2015. The Veteran was afforded a VA medical opinion in December 2015. The examiner opined that the Veteran’s sleep apnea was less likely than not related to his service-connected PTSD. As rationale, the examiner stated that the weight of the medical literature does not support obstructive sleep apnea being caused by or the result of PTSD. See C&P Exam, dated December 29, 2015. Here, the Board finds that both medical opinions of record are equally probative. The December 2015 opinion is highly probative, as it is thorough and well supported by rationale. Comparatively, the March 2015 opinion from Dr. R.M is also highly probative, as it was rendered with personal knowledge of the Veteran’s medical history as his treating psychiatrist, and is supported by the medical literature of record. Thus, the Board concludes that the evidence is at least in equipoise for the claim, and the benefit of the doubt doctrine has been applied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). Accordingly, service connection is warranted for sleep apnea as secondary to PTSD. Although 38 C.F.R. §3.310(b) indicates that service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability, the next sentence indicates that the rating activity will determine the baseline and current levels of severity and determine the extent of aggravation. Given that the Board is not bound by the AOJ’s determination that aggravation is not present, and as the Board does not assign ratings in the first instance, the Board reads 38 C.F.R. §3.310(b) as permitting the Board to determine whether service connection on an aggravation basis is warranted, with the AOJ having the responsibility for determining the degree of aggravation in assigning the rating. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Marsh II, Associate Counsel