Citation Nr: 18157932 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 15-42 561 DATE: December 13, 2018 ORDER Entitlement to service connection for sleep apnea, as secondary to posttraumatic stress disorder (PTSD), is granted. Entitlement to service connection for fibromyalgia, as secondary to PTSD, is granted. FINDINGS OF FACT 1. The Veteran’s diagnosed sleep apnea is associated with his service-connected PTSD. 2. The Veteran’s diagnosed fibromyalgia is associated with his service-connected PTSD. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for sleep apnea, as secondary to PTSD, are met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.310 (2017). 2. The criteria for entitlement to service connection for fibromyalgia, as secondary to PTSD, are met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from August 1961 to August 1965. During his period of service, the Veteran earned the Good Conduct Medal and Vietnam Service Medal with one bronze campaign star. In order to prevail on a claim of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence 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 disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d) (2017). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a) (2017). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b) (2017); Allen v. Brown, 8 Vet. App. 374 (1995). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. Sleep Apnea The Veteran contends that his obstructive sleep apnea is secondary to his service-connected PTSD. With regard to a current disability, the Veteran’s November 2015 VA examination notes a diagnosis of obstructive sleep apnea. Thus, the first elements of the Shedden and Wallin analysis have been met. With regard to the direct service-connection claim, a review of the Veteran’s service treatment records does not reveal any complaints or diagnosis of a sleep related disability during his military service. The Veteran does not argue the contrary. Rather, he contends that his obstructive sleep apnea is related to his service-connected PTSD. As the competent and credible evidence of record is against a finding that the Veteran had an in-service event or injury relating to obstructive sleep apnea, the second element of Shedden is not met and any discussion of medical nexus for direct service connection is not warranted. With regard to the secondary service connection, the Board notes that the Veteran is service-connected for PTSD; bilateral plantar fasciitis; temporomandibular joint disorder, associated with PTSD; peripheral neuropathy of the bilateral lower extremities; gout of the bilateral feet; bilateral tinnitus; bilateral hearing loss; and erectile dysfunction, associated with PTSD. Thus, the second element of Wallin is met. The remaining question is whether there is a medical nexus between the Veteran’s current obstructive sleep apnea and his service-connected PTSD. On this matter, the evidence preponderates in favor of a finding of nexus. A private opinion was provided by Dr. R. R. in May 2015. The Veteran reported that his sleep disorder been present since the time of his post-service period and had gradually worsened. The examiner opined that it was likely that the Veteran’s condition was related to the emotional trauma sustained during the Vietnam War. As indicated above, the Veteran appeared for a VA sleep apnea examination in November 2015. The Veteran reported that the condition began 1971. He reported loud snoring and apnea witnessed by wife. He further reported being diagnosed with obstructive sleep apnea in 2014. The examiner opined that the Veteran’s sleep apnea was less likely than not proximately due to or the result of the Veteran’s PTSD, as the Veteran’s July 2014 sleep study showed obstructive sleep apnea, which is a mechanical rather than psychological or central etiology of sleep apnea. A private opinion was provided by Dr. T. H. in August 2018. Upon review of the opinion provided by Dr. R. R. in April 2015, the competent evidence of recent studies, and the Veteran’s history of poor sleep, restless legs, and nightmares, in conjunction with an evaluation of the Veteran, the examiner opined that it was more likely than not that the Veteran’s PTSD aggravated his obstructive sleep apnea. The examiner added that the Veteran’s obstructive sleep apnea aggravated his PTSD due to overlapping symptoms of each condition. In consideration of the evidence of record, the Board finds that the preponderance of the evidence is in favor of service connection on a secondary basis for obstructive sleep apnea. In so finding, the Board finds the May 2015 and August 2018 private opinions to be more probative than the November 2015 VA opinion, as the examiner failed to address whether the Veteran’s obstructive sleep apnea was aggravated by his service-connected PTSD or fully explain why his obstructive sleep apnea was not related to his PTSD, rendering it of little probative value. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As the private opinions of record indicate that the Veteran’s obstructive sleep apnea is related to his service-connected PTSD, service connection for obstructive sleep apnea is warranted, as secondary to his service-connected PTSD. Accordingly, the benefit of the doubt will be conferred in the Veteran’s favor, and his claim for service connection for obstructive sleep apnea is granted. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Fibromyalgia With regard to a current disability, the Veteran’s November 2015 VA examination notes a diagnosis of fibromyalgia. Thus, the first elements of the Shedden and Wallin analysis have been met. With regard to the direct service connection claim, a review of the Veteran’s service treatment records does not reveal any complaints or diagnosis of a neurologic or muscular pain related disability during his military service. The Veteran does not argue the contrary. Rather, he contends that his fibromyalgia is related to his service-connected PTSD. As the competent and credible evidence of record is against a finding that the Veteran had an in-service event or injury relating to fibromyalgia, the second element of Shedden is not met and any discussion of medical nexus for direct service connection is not warranted. With regard to the secondary service connection, the Board notes that the Veteran is service-connected for PTSD; bilateral plantar fasciitis; temporomandibular joint disorder, associated with PTSD; peripheral neuropathy of the bilateral lower extremities; gout of the bilateral feet; bilateral tinnitus; bilateral hearing loss; and erectile dysfunction, associated with PTSD. Thus, the second element of Wallin is met. The remaining question is whether there is a medical nexus between the Veteran’s current fibromyalgia and his service-connected PTSD. On this matter, the evidence preponderates in favor of a finding of nexus. A private opinion was provided by Dr. R. R. in May 2015. The examiner indicated that the Veteran had a diagnosis of fibromyalgia, which he opined would clearly be part of a disorder related to the Veteran’s military service and was as likely as not caused by his military service. As indicated above, the Veteran appeared for a VA fibromyalgia examination in November 2015. The Veteran indicated that his condition began on 1965. He reported soreness and pain in numerous areas of body, accompanied by anxiety and depression, began after hostile fire and a sexual assault. The Veteran reported being diagnosed with fibromyalgia in February 2015. At the time of examination, his symptoms included fatigue, anxiety, depression, muscle pain, and soreness. The examiner opined that the Veteran’s fibromyalgia was less likely than not proximately due to or the result of the Veteran’s PTSD, as there were no records of fibromyalgia symptoms while in-service. A private opinion was provided by Dr. T. H. in August 2018. The examiner cited to several medical articles that suggested the Veteran’s fibromyalgia could be caused by the imbalances of brain function due to his PTSD and the shared symptoms of the comorbid PTSD and fibromyalgia. While the examiner noted that there was no direct evidence that the Veteran’s PTSD caused his fibromyalgia, the examiner opined that it was as least as likely as not that the Veteran’s fibromyalgia aggravated his PTSD, and that his PTSD aggravated his fibromyalgia due to the comorbid symptoms of both. The examiner indicated that research had shown the correlation between brain signals of both fibromyalgia and PTSD that cause conflicting signals to be sent to portions of the brain that regulate sleep, depression, sleep/wake cycle, and pain. In consideration of the evidence of record, the Board finds that the preponderance of the evidence is in favor of service connection on a secondary basis for fibromyalgia. In so finding, the Board finds the May 2015 and August 2018 private opinions to be more probative than the November 2015 VA opinion, as the examiner failed to provide sufficient rationale as to whether the Veteran’s fibromyalgia was caused or aggravated by his service-connected PTSD, rendering it of little probative value. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As the private opinions of record indicate that the Veteran’s fibromyalgia is related to his service-connected PTSD, service connection for fibromyalgia is warranted, as secondary to his service-connected PTSD. (Continued on the next page)   Accordingly, the benefit of the doubt will be conferred in the Veteran’s favor, and his claim for service connection for fibromyalgia is granted. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Joseph, Associate Counsel