Citation Nr: 20002137 Decision Date: 01/09/20 Archive Date: 01/09/20 DOCKET NO. 19-04 350 DATE: January 9, 2020 ORDER Entitlement to service connection for obstructive sleep apnea, as secondary to the service-connected adjustment disorder, is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, the evidence suggests that his obstructive sleep apnea was caused by his service-connected adjustment disorder. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea, as secondary to the service-connected adjustment disorder, are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 2008 to January 2012. The Board of Veterans’ Appeals (Board) remanded this matter in August 2019 for additional development. The Regional Office is now in compliance with the Board’s directives on remand. Stegall v. West, 11 Vet. App. 268 (1998). Service connection for sleep apnea, as secondary to the service-connected adjustment disorder The Veteran contends that his obstructive sleep apnea is secondarily related to his service-connected adjustment disorder. He has not raised, nor does the evidence raise, the issue of service connection for sleep apnea on a direct basis. Therefore, only a secondary theory of entitlement to service connection will be considered in this decision. Service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 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 was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). To prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); 38 C.F.R. § 3.310 (2018). When there is an approximate balance of positive and negative evidence as to any issue material to the decision of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Here, the Board finds that the Veteran has a current diagnosis of obstructive sleep apnea, as is indicated on multiple VA and private medical examination and treatment reports. Thus, the current diagnosis requirement is met. The second element on the issue of entitlement to secondary service connection is also met, as the record indicates that the Veteran is service-connected for an adjustment disorder. Therefore, the question for the Board is whether the Veteran’s sleep apnea is related to, caused by, or aggravated beyond its normal progression by his service-connected adjustment disorder. In this regard, on a September 2014 DBQ for posttraumatic stress disorder (PTSD), the Veteran was diagnosed with an adjustment disorder. Under criterion D of the DBQ, it was indicated that sleep disturbance was evidence of either a marked alteration in arousal and reactivity associated with the related in-service traumatic event or the beginning or worsening after the in-service traumatic event. The examiner documented chronic sleep impairment as a symptom that actively applies to the Veteran’s adjustment disorder diagnosis. A November 2017 lay statement received from the Veteran’s spouse suggests that the Veteran’s sleep problems started shortly before leaving service and got worse over time. Specifically, she indicated that she began sharing a bed with the Veteran in July 2011, during which she noticed that his sleep was somewhat restless and that he snored on occasions. She further stated that, over the next several years, the Veteran’s sleep problems kept getting worse, as he began having nightmares and kept gasping for air while sleeping. In a November 2017 VA medical opinion for sleep apnea, the examiner opined that the Veteran’s sleep apnea is less likely than not proximately due to, or the result of, his military service. As rationale, he stated that PTSD may cause sleep disturbances but that sleep apnea is not one of them. In an October 2018 addendum opinion, the examiner reiterated that behavioral health issues such as PTSD and adjustment disorders may cause sleep disturbances but that sleep apnea is not one of them. He further stated that sleep disturbances may cause frequent arousal but do not cause one to have apneic episodes. In November 2018, the Veteran’s attorney submitted a medical journal article that discusses the association between psychiatric disorders and sleep apnea, suggesting that data and evidence from VA indicate that there is somewhat of a prevalence of sleep apnea in veterans who are diagnosed with psychiatric disorders. The Veteran’s attorney argued that the article supports a finding that the Veteran’s service-connected adjustment disorder either caused or aggravated his sleep apnea. In another addendum opinion, dated in August 2019, the VA examiner stated that he reviewed the medical journal article that the Veteran’s attorney submitted but noted that his opinion remained the same – that the Veteran’s adjustment disorder did not cause or aggravate his sleep apnea. The examiner stated that the article’s conclusion is based on a small sample and that therefore the conclusion is questionable. He also mentioned that a commonly-cited journal article supports his conclusion, but he did not provide a reference to such article. Based on the totality of the evidence of record, the Board finds that, in giving the Veteran the benefit of the doubt, his sleep apnea was caused by his service-connected adjustment disorder. In making this determination, the Board finds that the Veteran’s symptoms noted in his medical treatment records, including the September 2014 VA examination report, which appear to be consistent with lay statements from the Veteran and his spouse, and the medical journal article submitted by the Veteran’s attorney, along with the current diagnosis of sleep apnea, weigh more heavily toward a finding that the Veteran’s adjustment disorder (which was diagnosed in September 2014) caused his sleep apnea (which was diagnosed in May 2017). While the Board cannot ignore or disregard the VA examiner’s medical conclusions [see Willis v. Derwinski, 1 Vet. App. 66 (1991)], the Board is free to assess medical evidence and is not compelled to accept a medical opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). In this case, the VA examiner’s opinion is problematic because it lacks an adequate, supporting rationale. Notably, the examiner merely stated that mental disorders do not cause sleep apnea, but he did not provide support for this conclusion. He also did not explain what factors may have caused the Veteran’s sleep apnea, especially because sleep-related problems were documented as symptoms of the Veteran’s adjustment disorder and because sleep apnea was officially diagnosed after the Veteran was diagnosed with his adjustment disorder. As such, the Board finds that the VA examiner’s opinions do not have much probative value and cannot be used to deny the Veteran service connection for sleep apnea. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, the Board resolves all reasonable doubt in the Veteran’s favor, thereby allowing the Veteran to prevail on his claim of entitlement to service connection for sleep apnea as secondary to the service-connected disability of adjustment disorder. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Trowers, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.