Citation Nr: 18157083 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 09-18 710 DATE: December 11, 2018 ORDER Entitlement to secondary service connection for obstructive sleep apnea is granted. FINDING OF FACT The Veteran’s service-connected post-traumatic stress disorder (PTSD) aggravated his obstructive sleep apnea. CONCLUSION OF LAW The criteria for entitlement to service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107(b); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran became a member of the Army National Guard in March 1979 and had an initial period of active duty for training from April 1979 to June 1979. Thereafter, he continued in the National Guard and was called to active duty from July 2006 to November 2007. He served in Southwest Asia from October 2006 to October 2007. This matter came before the Board of Veterans Appeals (Board) through an appeal of the March 2010 rating decision by the Regional Office (RO). A hearing was held before the Board in June 2012 and a transcript of that hearing has been associated with the claims file. The Board subsequently remanded the case for additional development in October 2012, August 2015, and March 2016. Subsequently, the Board obtained opinions from the Veterans Health Administration (VHA) in May 2017 and July 2018, as well as an addendum opinion in October 2018. As a result, the Board finds substantial compliance with its previous remand instructions, and has properly continued with the foregoing decision. Substantial compliance, rather than strict compliance, is required. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Stegall v. West, 11 Vet. App. 268, 271 (1998). This matter has now returned to the Board. 1. Entitlement to service connection for obstructive sleep apnea The Veteran contends that his service-connected PTSD aggravated his sleep apnea. See VA 21-4138 dated May 2013. He asserts that there is existing medical literature which supports a causal link between PTSD and sleep apnea. See VA 21-4138 dated May 2013; VA 21-4138 dated June 2013. The Veteran also reports that he was diagnosed with sleep apnea approximately 2 months after service, but that it has gotten worse due to his PTSD. See Hearing Testimony dated November 2011; Hearing Testimony dated June 2012; VA-4138 dated December 2015. Secondary service connection may be granted for a disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). Secondary service connection is also possible for the increase in severity of a nonservice connected disability that is caused (aggravated) by a service connected disability. 38 C.F.R. § 3.310(b). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds that the Veteran is competent to report his diagnosis of obstructive sleep apnea and that he is competent to report any statements made by physicians regarding his condition. The Board finds his statements in this regard to be credible and to hold probative weight because they are consistent with the medical evidence of record. However, the Veteran is not competent to provide an opinion as to whether his PTSD aggravated his obstructive sleep apnea because the issue is medically complex and must be addressed by someone with the requisite medical expertise and training. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). The Veteran is service-connected for PTSD. See Rating Decision dated November 2007. The Veteran has also been diagnosed with obstructive sleep apnea. See VA Examinations dated March 2013 and June 2016; Sleep Disorders Clinic Polysomnographic Report dated October 2009; VA Treatment Records dated October 2009. The Veteran underwent VA examinations in March 2013, November 2015, and June 2016. The March 2013 VA examiner opined that the Veteran’s sleep apnea was less likely than not incurred in or caused by service. His rationale was based on the Veteran not having documented sleep apnea while in service. See VA Examination dated March 2013. The Board found this VA examination to be inadequate because it did not address entitlement due to aggravation by PTSD. See Board Remand dated March 2016. The November 2015 VA examiner also opined that the Veteran’s sleep apnea was less likely than not incurred in or caused by service. The examiner further opined that the medical evidence does not preponderantly support obstructive sleep apnea being secondarily service-connected to PTSD. See VA Examination dated November 2015. The Board found this VA examination to be inadequate because the examiner did not consider or address the medical literature submitted by the Veteran which did present questions of medical knowledge pointing to a causal link between PTSD and sleep apnea. See Board Remand dated March 2016. The June 2016 VA examiner also opined that the Veteran’s sleep apnea was less likely than not incurred in or caused by service. The examiner also opined that the sleep apnea was less likely than not proximately due to or the result of his PTSD. See VA Examination dated June 2016. The examiner’s rationale was based on a review of the evidence and medical literature and a finding that neither provided strong support for a causal link between PTSD and sleep apnea. The Board finds this VA examination also to be inadequate because it does not address entitlement due to aggravation by PTSD. The Veteran also received a private opinion from T.M.C., Ed.D., LPC, LMFT in February 2018 in which T.M.C. opined that the Veteran’s sleep apnea is at least as likely as not aggravated by his PTSD. See Letter from T.M.C. dated February 2018. T.M.C. based his opinion on the Veteran’s statements that his sleep apnea is made worse by his PTSD because the better he sleeps, the more he dreams and the more he dreams, the more he wakes up started, paranoid, and feeling like he is back in the war. T.M.C. also reported that the Veteran stated that if the CPAP mask hose touches him, then he awakes startled. See Letter from T.M.C. dated February 2018. He also based his opinion on previous Board decisions and several listed medical and behavioral health literatures. The Board finds that T.M.C. is not competent to provide an expert opinion regarding the etiology of the Veteran’s sleep apnea. T.M.C. is not a medical doctor and appears to hold a professional’s doctorate in education (Ed.D.), a license to practice counseling (“LPC”), and a license to practice marriage and family therapy (“LMFT”). T.M.C., therefore, does not appear to possess the requisite expertise to address the causal factors implicated for a medical condition, such as sleep apnea. The Board obtained a Veterans Health Administration (VHA) opinion in May 2017. In that opinion, Dr. A.A. opined that it was unlikely that the Veteran’s PTSD was causing or aggravating his sleep apnea. See VHA Opinion dated May 2017. Dr. A.A. based his opinion on a review of the medical literature submitted by the Veteran, which he summarized as not supporting that sleep apnea is more common in patients with PTSD. See VHA Opinion dated May 2017. He also reviewed the Veteran’s diagnostic sleep study findings and concluded that the overnight in-lab polysomnography study showed that the quality of sleep was not affected by PTSD. See VHA Opinion dated May 2017. Another VHA opinion was obtained in July 2018 from Dr. M.F. who opined that the connection between PTSD and obstructive sleep apnea still needs continued exploration. He based his opinion on existing medical research and literature. See VHA Opinion dated July 2018. The opinion also discusses the overlapping nature of sleep apnea and PTSD. Dr. M.F. opined in an addendum opinion obtained in October 2018 that, upon the review of the available evidence, it is at least as likely as not that the Veteran’s sleep apnea was caused by or permanently aggravated by his PTSD. See VHA Addendum Opinion dated October 2018. The Board finds the VHA opinions to be adequate when taken together as a whole. The Board also affords the VHA opinions significant probative weight because they provide a thorough analysis on the existing medical literature and research and they address the medical research offered by the Veteran. The Veteran submitted several online articles discussing the interrelationship of sleep and PTSD. These articles all discuss a causal link between PTSD and sleep apnea. See Medscape Online Article, Sleep Disturbances and Posttraumatic Stress Disorder; Libman, Eva, et. al, Psychologic Aspects of Obstructive Sleep Apnea/Hypopnea Syndrome; Sleep Apnea Treatment Centers of America, Post-Traumatic Stress Disorder and Sleep Apnea; Psychiatry Advisor, PTSD Severity Linked to Higher Risk of Sleep Apnea in Veterans; American Academy of Sleep Medicine, Study finds high risk of sleep apnea in young veterans with PTSD. The Board finds that these online articles hold significant probative weight as they support the Veteran’s contention that PTSD can aggravate sleep apnea. The Board also notes that the record includes submitted copies of prior Board decisions where service connection was granted based on a causal link between PTSD and sleep apnea. However, Board decisions are non-precedential, in part because findings of fact upon which they are based are inherently specific to the particular case which is decided. 38 C.F.R. § 20.1303. Based on the VHA opinions which provide a thorough analysis of the existing medical literature regarding a causal link between PTSD and sleep apnea, as well as the online articles submitted by the Veteran, the Board finds that there is sufficient evidence to warrant service connection for sleep apnea due to aggravation by the Veteran’s PTSD. The literature discussed in the VHA opinions as well as the Medscape article show that there are factors that overlap between PTSD and sleep apnea that affect and aggravate each other. See VHA Opinion dated July 2018; Medscape Online Article, Sleep Disturbances and Posttraumatic Stress Disorder. As such, the Board finds that secondary service connection for sleep apnea is warranted. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Bognar, Associate Counsel