Citation Nr: 1803969 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 15-36 023 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for sleep apnea, claimed as secondary to service-connected post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Marsh II, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from April 2001 to April 2005. This matter is before the Board of Veterans' Appeals on appeal from a July 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before the undersigned in an April 2017 videoconference hearing. A transcript of that hearing is of record. In Clemons v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that, in determining the scope of a claim, the Board must consider the claimant's description of the claim, symptoms described, and the information submitted or developed in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The Board notes that the Veteran initially filed a claim for entitlement to service connection for sleep apnea under a theory of direct service connection. In the July 2012 rating decision that originally denied the Veteran's claim for service connection for sleep apnea, the Veteran was, however, granted service connection for PTSD effective May 10, 2011. Subsequently, the Veteran expanded his claim to include service connection for sleep apnea, as secondary to PTSD. Thus, the issue of entitlement to service connection for sleep apnea has been expanded as noted on the title page of this decision consistent with Clemons. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT The competent evidence shows that the Veteran's sleep apnea is secondary to his service-connected PTSD. CONCLUSION OF LAW The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist In light of the fully favorable decision herein no discussion of VA's duty to notify and assist is necessary. Mlechick v. Mansfield, 503 F.3d 1340 (Fed. Cir. 2007). II. Service Connection Generally, to establish service connection a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for a disability that is proximately due to, or the result of, a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See id; Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or aggravated by, a service-connected disease or injury. 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 current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises and statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Here, the Veteran argues that his sleep apnea is secondary to his service-connected PTSD. As will be discussed below, the Board is granting this claim because there is competent medical evidence indicating that the Veteran's sleep apnea is secondary to his PTSD. The Veteran's service treatment records indicate complaints of the Veteran feeling tired after sleeping, but are absent of sleep studies conducted during service or any sleep disorder noted at separation. Post-service treatment records and examinations indicate that the Veteran began receiving treatment for obstructive sleep apnea in August 2011; however, the record at the time of the rating decision on appeal was absent of a current diagnosis for sleep apnea. As discussed above, in the July 2012 rating decision that originally denied the Veteran's claim for service connection for sleep apnea, the Veteran was granted service connection for PTSD effective May 10, 2011. As the Veteran asserts that his current claimed sleep apnea is due to his service-connected PTSD, this case turns on whether the Veteran's sleep apnea is secondary to his PTSD. The Veteran was afforded a VA Examination in July 2012. Relying on the Veteran's post-service treatment records, the examiner opined that the Veteran's sleep apnea was not related to his service, as there was no evidence of record associating the condition with his service. Following the July 2012 examination and subsequent rating decision denying service connection for sleep apnea, the Veteran submitted a November 2012 sleep study which resulted in a diagnosis of obstructive sleep apnea. Accordingly, the Veteran was afforded an addendum opinion in July 2015. The examiner opined that the Veteran's sleep apnea was not related to his service. In rendering the opinion, the examiner cited several medical sources and the fact that the Veteran had not undergone a sleep study until seven years after service. The examiner, however, failed to address the Veteran's service-connected PTSD as a basis for secondary service-connection. Thus, the July 2015 opinion is afforded no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that an opinion based upon an inaccurate factual premise has no probative value). The Veteran was afforded another VA Examination in March 2017. The examiner opined that it was at least as likely as not that the Veteran's current claimed sleep apnea was caused by his service connected PTSD. The examiner cited the Veteran's lay statements concerning snoring in service, and further cited several medical sources associating sleep apnea with PTSD in veterans. The weight of the evidence supports a finding that there is a nexus between the Veteran's sleep apnea and his service-connected heart disability, which is the final requirement for establishing secondary service connection. In this regard, the March 2017 medical opinion is most probative, as it is the only opinion of record that addresses service connection as secondary to PTSD. The Board considers evidence to be more probative if it includes clear conclusions and supporting data with a reasoned analysis connecting the data and conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). To that end, the Board finds that this opinion has significant probative value because it relied on medical principles to explain the causal relationship between the Veteran's sleep apnea and his PTSD. Furthermore, the record does not contain any medical evidence of record which disputes the existence of a nexus between the Veteran's sleep apnea and his PTSD. As such, the criteria for entitlement to service connection for sleep apnea secondary to service-connected PTSD have been met. ORDER Entitlement to service connection for sleep apnea, secondary to PTSD is granted. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs