Citation Nr: 19119035 Decision Date: 03/19/19 Archive Date: 03/15/19 DOCKET NO. 17-36 319A DATE: March 19, 2019 ORDER Service connection for obstructive sleep apnea is granted. FINDING OF FACT The preponderance of the evidence supports a finding that the currently diagnosed obstructive sleep apnea had its onset during active service and is aggravated by the service-connected PTSD. CONCLUSION OF LAW Resolving all doubt in the Veteran’s favor, the criteria for service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on ACDUTRA from September 1965 to March 1966 with additional periods of reserve service. This matter comes on appeal before the Board of Veterans’ Appeals (Board) from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran waived a hearing before the Board in his July 2017 substantive appeal, via a VA Form 9. Service connection for obstructive sleep apnea Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease incurred in service. 38 C.F.R. §3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence 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 disability. Shedden v. Principi, 381 F.3d 1163, 1167 (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). Obstructive sleep apnea is not considered by VA to be a “chronic disease” listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A layperson is competent to report on the onset and continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran asserts that his obstructive sleep apnea had its onset during active service or that it was proximately caused by or aggravated by the service-connected post-traumatic stress disorder (PTSD). Turning the evidence of record, the Veteran has a current diagnosis of obstructive sleep apnea. See November 2010 private disability benefit questionnaire (DBQ). The Veteran is also service-connected for PTSD related to abuse and harassment by his drill Sergeant during boot camp between September 1965 to March 1966. The Veteran contends that he did not snore before service but began to snore severely during boot camp. The Veteran reported that during boot camp, he was often woken up by other Marines in the barracks because of his frequent, loud snoring. He also reports that he was snoring so loudly one night, several other Marine recruits unscrewed his top bunk, moved him and the bed outside while he slept, and locked him out of the barracks. See March 2017 statement. The Veteran reported, in relevant part, frequent trouble sleeping in his July 1965 Report of Medical History at enlistment, but the corresponding medical examination at enlistment was clinically normal and did not address the Veteran’s reported symptoms. The service treatment records are silent as to symptoms, diagnoses, or treatment for obstructive sleep apnea during service. The Veteran’s March 1966 Report of Medical Examination at discharge from active duty was clinically normal, except for a noted right knee disability and a VSULA. The Veteran denied difficulty sleeping in a March and April 1967 annual report of medical history. The April 1967 and July 1968 medical examination reports were clinically normal except for the right knee disability and a VSULA. In an August 1969 report of medical history, the Veteran reported difficulty sleeping. The August 1969 medical examination report showed an abnormal psychiatric examination and noted the Veteran had difficulty sleeping and nightmares. The Veteran’s spouse, G.V.R., submitted a February 2010 statement. She reported that the Veteran napped three to four per day because he was always tired. She frequently had to wake him during the night and tell him to roll over because of his severe snoring. VA treatment records during the appellate period show diagnosis and treatment of obstructive sleep apnea and report the first diagnosis of sleep apnea in 2003 at Duke Medical Center. In the October 2012 notice of disagreement, the Veteran asserted that obstructive sleep apnea was not commonly diagnosed in 1965 because medical professionals did not widely understand sleep disorders until the 20th century. The Veteran reported that people with sleep apnea are rarely aware of having difficulty breathing, or apneas, while sleeping. Further, the Veteran contended that sleep apnea symptoms may be present for years or even decades before sleep apnea is diagnosed, during which time, the person can be conditioned to daytime sleepiness and fatigue. The Veteran submitted another statement in April 2013. The Veteran indicated that sleep apnea is often undiagnosed because it cannot be detected during a routine office visit or with routine blood testing. Further, the Veteran indicated that most people who have sleep apnea do not know it because they are asleep during the apneas. He indicated that usually a family member or bed partner is the first to notice symptoms, and that sleep apnea causes the airway to collapse or to become blocked, causing shallow breathing or pauses. The Veteran cited to a National Institute of Health internet article to support his contentions. A November 2014 VA mental health treatment record reported themes of fatigue that went back decades. In May 2015, the Veteran submitted an American Academy of Sleep Medicine article entitled “Study finds high risk of sleep apnea in young Veterans with PTSD.” The Veteran submitted a January 2016 statement from R.C., a friend who served with him at boot camp. R.C. reported the Veteran began having difficulty sleeping in service, but he related this symptom to the extreme fear of their abusive drill Sergent. The Veteran also submitted a November 2016 medical opinion from Dr. A.P., his treating pulmonologist. Dr. A.P. concluded that in his medical opinion, the service-connected PTSD aggravated the Veteran’s obstructive sleep apnea and the obstructive sleep apnea aggravated the PTSD. The Veteran also submitted a March 2017 medical opinion from Dr. C.N.B., a neuro-radiologist. Dr. C.N.B. based his opinion on a review of the Veteran’s medical records, thirty years of experience as a physician, an interview of the Veteran, review of medical literature, and on known medical principles and progression of sleep apnea. Dr. C.N.B. noted the Veteran reported difficulty sleeping, mental confusion, easy fatigability, insomnia, nightmares, and increased irritability during service. He indicated that the Veteran reported his snoring was so severe during boot camp, his bunkmates unscrewed his top bunk while he slept and moved him outside. Based the Veteran’s reported symptoms in service, it was Dr. C.N.B.’s opinion, by a probability of 90 percent, that the Veteran’s sleep apnea had onset during service. He also indicated that the etiology of the sleep apnea was related to the Veteran’s service-connected PTSD, which also had onset during boot camp after being assaulted and harassed by his drill Sergent. To support his opinion, he cited a Baylor University study entitled “Association of Psychiatric Disorders and Sleep Apnea in Large Cohort.” The study suggested that there was a high prevalence of sleep disorders in Veterans who also had psychiatric disorders. Dr. C.N.B. concluded there was no other disorder in the Veteran’s medical records that could provide a more plausible etiology other than the service-connected PTSD. He also noted that the lag time between the PTSD in service and the current pathology was consistent with known medical principles of the disease. The Veteran submitted another statement to support his claim in March 2017. The Veteran again asserted he began snoring during boot camp, and that he did not snore before service. He reported being woken up by other Marines because he snored, and in one instance, they carried him and his bunk outside and locked him out while he slept because of his loud snoring. He also had dry mouth upon waking and sleeping problems during. After service, he snored and woke up gasping for air. He married his wife in 1992, and she immediately complained about his snoring. He was diagnosed with sleep apnea in 2003 at Duke Medical Center. The Veteran also submitted another statement from G.V.R., his spouse. She indicated the Veteran snored very loudly since they were married in 1992, and she has not been able to sleep with him at night. She also reported that he also stops breathing when he slept, sometimes a few seconds or longer, and gasps for air upon waking. Then, he was unable to go back to sleep. The Veteran also submitted several medical studies and internet articles in April 2017, which he asserted supports his contention that obstructive sleep apnea is more prevalent in Veteran’s who also have PTSD. He also submitted an opinion from the Board of Veteran’s Appeals for another Veteran granting service connection for obstructive sleep apnea as secondary to PTSD. The Veteran was afforded a VA examination in June 2017. The Veteran reported the sleep apnea started in 1965 with symptoms of loud snoring and observed apneas. The Veteran had a surgery in Barcelona, Spain to remove his uvula, but that it did not help with the snoring. His current symptoms also included daytime sleepiness. The examiner, a physician’s assistant, concluded that it was at least as likely as not that the Veteran’s sleep apnea was proximately due to or the result of the service-connected PTSD. The examiner explained that a private pulmonary specialist had found a correlation between the two disabilities, several sleep studies confirmed the diagnosis of sleep apnea, and there was evidence that sleep apnea was related to the PTSD. Further, the examiner found that the sleep apnea and the PTSD progressed together, and the examiner could not determine whether the sleep apnea was aggravated beyond the natural progression of the disorder by the PTSD. The examiner noted the Veteran had exhibited a normal progression of sleep apnea. No opinion was provided as to whether the sleep apnea had onset or was otherwise directly related to service. VA obtained an addendum opinion in July 2017 from a VA physician. The July 2017 physician’s opinion was based a review of the claims file, the Veteran’s service treatment records, lay statements, and medical literature. The examiner noted it has been conceded that the Veteran sustained personal trauma during service from his drill Sergent, and that as a result, the Veteran has been service-connected for PTSD. The VA physician also indicated that the Veteran’s entrance medical history report was noteworthy because the Veteran reported difficulty sleeping, nightmares, and frequent worrying at enlistment into service. He also noted that during the Veteran’s six months of active duty training, there was no diagnoses of sleep apnea. Based on the April 1967 and March 1968 reports of medical history for retention, in which the Veteran denied difficulty sleeping, nightmares, and frequent worrying, the examiner concluded that this evidence strongly suggested that he did not have symptoms of obstructive sleep apnea at that time. He reported that the Veteran began to have significant psychiatric symptoms in 1969, but that a review of his buddy statements most clearly suggests difficulty sleeping related to the service-connected PTSD. Although Dr. C.N.B. found the Veteran’s snoring in service indicated onset of sleep apnea, the VA physician disagreed and reported that snoring alone without other symptoms was not enough to support a sleep apnea diagnosis, even acknowledging that sleep apnea was not clearly elucidated as a medical issue until many years later. Since there were no symptoms of sleep apnea reported during his six months of active duty, the VA physician concluded it was less likely than not that the Veteran’s sleep apnea had onset or was otherwise related to service. The July 2017 physician also concluded that it was less likely than not that the Veteran’s sleep apnea was secondary or caused by the service connected PTSD. The VA physician reviewed the medical literature referenced by Dr. C.N.B., as well as additional medical articles submitted by the Veteran. He cited to each medical article of record but explained why each study did not apply to this Veteran. For example, the VA physician pointed out that several of the studies’ subjects had combat related PTSD, were obese, or were Gulf War veterans. The examiner differentiated this Veteran from each study and concluded that the findings of those studies did not apply to this Veteran. Overall, the VA physician noted that none of the articles concluded a causal relationship between sleep apnea and PTSD, but instead found that they often occurred comorbidly. However, the VA physician also conceded that the research in this field was still developing. Ultimately, he concluded that there was no evidence that “cements the causal relationship” between PTSD and sleep apnea. No opinion was provided as to whether the service-connected PTSD aggravated the sleep apnea. The Board notes that proof of symptoms in service that are later diagnosed may be evidence of service “incurrence.” See 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303 (a), (d); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The medical evidence shows that the Veteran’s diagnosis of obstructive sleep apnea is characterized by symptoms of snoring, daytime fatigue, and apnea episodes. The competent and credible lay evidence of record includes statements describing the Veteran’s loud snoring during service which supports the claim overall because it tends to show that the same symptoms that began during service were the basis for the later diagnosed obstructive sleep apnea. See Horowitz v. Brown, 5 Vet. App. 217, 221-22 (1993). Additionally, the Veteran also submitted two etiology opinions from Dr. C.N.B. and Dr. A.P. supporting both onset of sleep apnea during service and supporting that the sleep apnea was caused by or aggravated by the service-connected PTSD. These private medical opinions, along with the June 2017 positive VA examiner’s medical opinion for secondary service connection, are probative and weigh in favor of the claim. Although the July 2017 VA medical opinion weighs against the claim, the Board assigns it less probative weight because the VA physician’s opinion was based impermissibly on a lack of diagnoses of sleep apnea in service and a lack of reports of additional symptoms along with the snoring in service. However, the examiner failed to consider the likelihood of the Veteran reporting symptoms of a disability while enduring systematic and ongoing physical abuse and harassment by his drill Sergeant. Further, the VA physician dismissed the Veteran’s credible reports of severe snoring during service. Additionally, the July 2017 VA examiner failed to provide a medical opinion as to whether the service-connected PTSD aggravated the sleep apnea. See June 2017 VA examination. Therefore, the July 2017 medical opinion as to secondary service connection is inadequate and is not probative. Accordingly, based on the competent and credible lay and medical evidence of record, and resolving all reasonable doubt in favor of the Veteran, the Board finds that the evidence is at least in equipoise that the Veteran’s obstructive sleep apnea had its onset during active service and that it is aggravated by the service-connected PTSD. Therefore, service connection for sleep apnea is granted. 38 C.F.R. §§ 3.303(a), (d), 3.310. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Harper, Associate Counsel