Citation Nr: 20053479 Decision Date: 08/12/20 Archive Date: 08/12/20 DOCKET NO. 15-33 403 DATE: August 12, 2020 ORDER Entitlement to service connection for sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD) and major depressive disorder (MDD), is granted. REMANDED Entitlement to service connection for hypertension is remanded. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, the competent and probative evidence of record is at least in equipoise as to whether or not the Veteran's current sleep apnea is either caused or aggravated by her service-connected posttraumatic stress disorder (PTSD) and major depressive disorder (MDD). CONCLUSION OF LAW The criteria for service connection for sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD) and major depressive disorder (MDD), have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.159, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from November 1981 to January 1985. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. These matters were previously before the Board in October 2018, at which time they were remanded for respective VA examinations. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 C.F.R. §§ 3.309. In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau, supra. Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998). Competent medical evidence is the type of evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises and/or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale and a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). Competent lay evidence is any kind of evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Lastly, in order to deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD) and major depressive disorder (MDD) The Veteran and her attorney assert that she is entitled to service connection for obstructive sleep apnea (OSA) because her observable symptoms began while she was serving on active duty and have continued since. Further, that reliving her active duty traumatic experience caused her PTSD and major depressive disorder (MDD), for which she is currently service connected at 70 percent, and this has also contemporaneously obstructed her sleep pattern. See, July 2020 Appellate Brief. A condition precedent for establishing service connection is the presence of a current disability. As an initial matter, the Board notes that the Veteran was diagnosed with obstructive sleep apnea (OSA) following a sleep study in December 2010 and the diagnosis was confirmed by a VA examiner in July 2019, during the examination afforded to the Veteran for her claim. Accordingly, the first element for establishing service connection for her sleep apnea disability has been met. With respect to the second element, the Veteran asserts that her exit examination in December 1984 demonstrates her reports of specific symptoms of frequent insomnia, morning tiredness, nervousness, irritability and weight gain, some of which has also been attributed to her PTSD and MDD diagnoses, for which she is now service connected. See, Service Treatment Records. See, July 2020 Appellate Brief. In addition, the Veteran has provided a “buddy” statement from her husband of 36 plus years (M.R.), who states that he started observing a change in the Veteran when she first came home after being stationed in Naples, Italy in 1983; that he observed that she got tired very easily (lethargic), was frequently anxious and that she became withdrawn. See, February 2020 Correspondence. Further, post service and prior to her sleep apnea diagnosis, the Veteran also consistently reported a history of sleepiness, including feeling unrefreshed and tired in the morning. See, February 2011 Sleep Study Report. The Veteran has consistently reported feeling groggy and drowsy. See, February 2012 Disability Determination Examination. The Board notes that insomnia, nervousness, fatigue, some of the same symptoms the Veteran reported during her December 1984 exit examination, were also noted as ongoing reported symptoms in the Veteran’s May 2014 Psychiatric Report. The record also reflects that the Veteran reported that her continuous irregular sleep pattern which resulted in her consistently feeling lethargic, as the basis for quitting her job as a Paramedic, in order to find a less demanding and stressful job. See, March 2011 Buddy/Lay Statement. The Board finds that the Veteran is competent to report the onset of her symptoms and continuity of such symptomatology. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Furthermore, the Board has no reason to doubt the credibility of the Veteran's statements. Layno v. Brown, 6 Vet. App. 465, 469 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board also notes that symptoms of sleep apnea are capable of lay observation, and as the Veteran has been consistent with her statements of sleepiness and lethargy, which are corroborated by several supporting competent statements of record, the Board finds these lay statements credible and of significant probative value. With regards to nexus, the July 2019 VA examiner opined that the Veteran’s current obstructive sleep apnea is less likely than not (less than 50 percent probability) incurred in or caused by your military service because her service treatment records do not show any evidence, signs or symptoms consistent with OSA in service. However, the Board finds that this is not an accurate statement, given that the Veteran’s STRs does contain the Veteran’s report of symptoms of frequent insomnia and morning tiredness. Further, the examiner mainly focused on a lack of in-service diagnosis of sleep apnea, which is not an adequate legal basis for a finding of negative nexus. In this regard, the law clearly provides that this cannot be the primary basis for a “no-nexus” opinion. Ledford v. Derwinski, 3 Vet. App. 87 (1992); Hensley v. Brown, 5 Vet. App. 155 (1993). As such, the Board finds the July 2019 VA examiner’s negative nexus opinion to be of low probative value. In contrast, the Veteran has provided a positive nexus statement from a psychiatrist, Dr. H.S., linking the Veteran’s depression to her OSA, stating: “Based on my experience, interview with the Veteran, review of medical records, and the supporting literature, I feel it is as likely as not the Veterans depression aided in the development and permanently aggravates her OSA.” As his rationale, Dr. H.S. cites to supporting research that reflects psychiatric disorders are commonly associated with OSA. Specifically, to a recent study that showed people with depression have a higher prevalence of OSA diagnosis, and another study that showed a decrease in OSA and depression symptoms with treatment of CPAP, in support of the co-mobility of these conditions. Given these facts, the Board finds Dr. H.S.’s positive nexus opinion to be of high probative value. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, VA shall give the benefit of the doubt to the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Consequently, the Board finds that the competent evidence of record is at least in equipoise as to whether the Veteran’s obstructive sleep apnea is directly or otherwise related to her active duty service. Accordingly, under these circumstances, and giving the Veteran the benefit of the doubt, the Board finds the evidence is at least in equipoise and that service connection for his sleep apnea, to include as secondary to PTSD and MDD, is warranted. 38 U.S.C.§§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. The Board finds the July 2019 hypertension VA examination inadequate because the examiner based her negative nexus opinion solely on the basis that there was no evidence, signs or symptoms consistent with hypertension in service. In this regard, the law clearly provides that this cannot be the primary basis for a “no-nexus” opinion. Ledford v. Derwinski, 3 Vet. App. 87 (1992); Hensley v. Brown, 5 Vet. App. 155 (1993). Furthermore, given that the Veteran has now been service-connected for her sleep apnea disability, the new examination should include an opinion regarding whether the Veteran’s hypertension could have also been aggravated by her service-connected sleep apnea, and her other service-connected PTSD and MDD disabilities. Consequently, a new VA examination is warranted before this matter can be adjudicated on its merits. The matters are REMANDED for the following action: 1. Obtain all outstanding treatment records in relation to the Veteran’s diagnosis and treatment for hypertension. If the Veteran has additional private treatment records, she should be afforded an appropriate opportunity to submit them. 2. Schedule the Veteran for a VA examination (other than with the July 2019 examiner) to determine the current nature and etiology of any diagnosed hypertension. The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. a) The examiner is asked to opine as to whether it is as least as likely as not (50 percent probability or greater probability) that any diagnosed hypertension had its onset in service or is otherwise the result of an incident in service. b) The examiner must also opine whether any diagnosed hypertension is at least as likely as not (50 percent or greater probability) proximately due to or the result of (i.e. was aggravated by) the Veteran's service-connected a) sleep apnea and/or b) PTSD and MDD. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. The examiner is reminded that “at least as likely as not" does not mean "within the realm of medical possibility", but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 3. After the above development has been completed, the Agency of Jurisdiction (AOJ) should readjudicate the remaining issue on appeal. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.B. King, 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.