Citation Nr: 1807781 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 11-05 919 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for sleep apnea secondary to the service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Pennsylvania Department of Military and Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Lavan, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1964 to April 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In April 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of this proceeding is associated with the claims file. The Board remanded the matter in June 2016 to obtain adequate VA medical opinions, which were issued in September 2016 and July 2017. Accordingly, no further development is necessary. The Board also remanded the issue of service connection for bilateral hearing loss. The RO granted service connection for bilateral hearing loss in August 2017. As this constitutes a full grant of the issue on appeal, it is no longer before the Board. FINDING OF FACT The Veteran's sleep apnea was not caused or aggravated by his service-connected PTSD. CONCLUSION OF LAW The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§1101, 1110, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate review by the Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See id. The Board finds that VA's duties to notify and assist have been met and all due process considerations have been satisfied. Except as discussed herein, the Veteran has not raised issues with the duties to notify or assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) (applying Scott to the duty to assist). Moreover, no new evidence was received after November 2017 Supplemental Statement of the Case. Further, the Veteran has not alleged any deficiency with the conduct of his hearing before the undersigned with respect to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). In this regard, the Federal Circuit ruled in Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Thus, the Board need not discuss any potential Bryant problem because the Veteran has not raised that issue before the Board. The pertinent regulations were provided to the Veteran in the Statement and Supplemental Statement of the Case and will not be repeated here. Service Connection for Sleep Apnea The Veteran contends that his sleep apnea is caused or aggravated by his PTSD. Specifically, he contends that his PTSD causes sleep impairment, including nightmares, which caused or aggravates his sleep apnea. The Board finds, however, that service connection is not warranted. The Board notes that the claim for service connection for sleep apnea is based on a secondary theory of causation only. There are no allegations from the Veteran that he had symptoms of sleep apnea during service, nor any medical evidence suggesting the condition is directly related to service. Accordingly, a direct service connection analysis is not warranted. While the March 2013 Notice of Disagreement indicates the Veteran claimed service connection for sleep apnea secondary to PTSD and ischemic heart disease, the Veteran has since stated his sleep apnea is only caused or aggravated by his PTSD, including in his July 2014 VA Form 9 and the April 2016 Board hearing. There is no competent evidence suggesting a possible relationship to his heart condition. The Veteran was diagnosed with mild obstructive sleep apnea-hypopnea syndrome in June 2012. VA medical records do not show that his treating providers have related it to his service-connected PTSD. Furthermore, in November 2013 and April 2014, two VA examiners concluded that, based on current medical literature, there is no causal relationship between sleep apnea and PTSD. The Board remanded for an addendum medical opinion that addressed the secondary theory of aggravation. In September 2016, a third VA examiner concluded that it is not at least as likely as not that the Veteran's PTSD caused or aggravated his sleep apnea. He noted that nightmares are associated with PTSD, not sleep apnea, and no studies had yet been provided that documented a causal relationship between PTSD and sleep apnea. In January 2017, the Veteran submitted an internet article titled "PTSD Severity Linked to Higher Risk of Sleep Apnea in Veterans." The article cited to a new study published in the Journal of Clinical Sleep Medicines, which stated that 69 percent of Iraq and Afghanistan Veterans who visited a VA outpatient PTSD clinic for evaluation were also at high risk for obstructive sleep apnea, and the risk rose along with PTSD symptom severity. The article noted that the link "between sleep apnea and PTSD in veterans is not clear" and "[p]ossible factors that may connect the two disorders include combat-related sleep disturbances, chronic stress from PTSD, and poor sleep caused by sleep apnea." Another VA medical opinion was obtained in July 2017 to address the article. The September 2016 VA examiner affirmed his conclusion that the PTSD did not cause or aggravate the Veteran's sleep apnea based on current medical knowledge and literature. After reviewing the Veteran's article, the examiner stated that the article provides no medical evidence that PTSD causes or aggravates PTSD. Instead, it merely noted an association between the severity of PTSD and the risk of having sleep apnea. The examiner then utilized an analogy to explain the difference between causality/aggravation and mere association. The only evidence in support of the Veteran's claim is his own contention that they are related. As discussed by the medical opinions above, however, there is no medical evidence that supports a causal relationship between PTSD and sleep apnea, or that PTSD has aggravated his sleep apnea. Moreover, as a lay person, the Veteran's opinion relating his sleep apnea to his PTSD is not competent. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board thus did not rely on this opinion when making its determination. The Veteran also submitted previous Board opinions and an internet article regarding the relationship between PTSD and sleep apnea in support of his claim. Prior Board decisions, however, are not precedential in nature and, as such, are not controlling in this case. See 38 C.F.R. § 20.1303. Moreover, the facts of these cases differ from the present case. In the decisions presented by the Veteran, the Board relied on positive nexus opinions in the claims file to support a grant of service connection for sleep apnea secondary to PTSD. There is no positive medical opinion in this case that supports the Veteran's claim. Regarding the medical article, the Board concurs with the July 2017 VA examiner that the article does not evidence a causal relationship between sleep apnea and PTSD, but merely documents an association between increased PTSD symptoms and the existence of sleep apnea. The article, and the study it cited, does not support the present claim. The Board thus finds that the weight of the competent and credible evidence shows the Veteran's sleep apnea was not caused or aggravated by his service-connected PTSD and the claim for service connection for sleep apnea is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Service connection for sleep apnea is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs