Citation Nr: 21000473 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 16-47 109 DATE: January 5, 2021 ORDER Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT The evidence is in equipoise as to whether the Veteran’s obstructive sleep apnea is caused by his service or secondary to his service-connected PTSD. CONCLUSION OF LAW The criteria for entitlement to service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 2005 to May 2013. In July 2019, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In December 2019, this appeal was remanded for further developed. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). 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). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Additionally, service connection may be established on a secondary basis for a disability which is proximately due to or the result of a 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 due to or the result of; or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310 (b); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Obstructive Sleep Apnea With respect to the Veteran’s claim for service connection for obstructive sleep apnea, the Board finds that the evidence is in equipoise as to whether the Veteran’s obstructive sleep apnea is caused by his service or secondary to his service-connected PTSD. As stated above, the first element of service connection requires evidence of a current disorder. In a March 2016 VA examination report for sleep apnea, the VA examiner confirmed a diagnosis of obstructive sleep apnea. Thus, the Veteran has satisfied the first element of direct and secondary service connection. The second element of service connection requires an in-service occurrence or event. Here, the Veteran’s service treatment records reflect that the Veteran reported trouble sleeping. See February 2013 separation examination report. Thus, the Veteran has satisfied the first element of direct service connection. Also, the second element of secondary service connection requires evidence of a service-connected disability. The evidence of record reflects that the Veteran has been service connected for PTSD. Thus, the Veteran has satisfied the second element of secondary service connection. Lastly, the third element of direct service connection requires a nexus, link, between the Veteran’s current disability and his service. The third element of secondary service connection requires medical nexus evidence establishing a connection between the service-connected disability and the current disorder. Here, in a March 2016 VA medical opinion, the VA examiner opined that the Veteran’s obstructive sleep apnea is less likely than not related to his service or secondary to his service-connected PTSD. The VA examiner noted that the Veteran’s sleep apnea is likely caused by his obesity. Also, in a July 2020 VA medical opinion, the VA examiner opined that the Veteran’s sleep apnea is less likely than not related to his service-connected PTSD. The VA examiner noted there is nothing in the Veteran’s service treatment records to reflect that the Veteran’s service caused his sleep apnea. The VA examiner noted that the Veteran’s sleep apnea is likely caused by his obesity, male gender, large neck, and history of smoking. Conversely, a July 2019 non-VA examiner opined that the Veteran’s sleep disorders are related to is PTSD and his active duty. However, a rationale was not provided. Also, in a September 2020 VA medical opinion, the VA examiner opined that the Veteran’s sleep apnea is likely due to his service and secondary to his service-connected PTSD. The examiner explained that the Veteran reported that he was treated for hypersomnolence during his service, which could have very likely be related to him having sleep apnea during his time in service. The Board notes that the Veteran’s service treatment records do reflect complaints related to trouble sleeping during service. See February 2013 separation examination report. Additionally, the VA examiner noted that the Veteran’s medications for his mental health disorder are known to cause weight gain. Thus, the VA examiner rationed that the Veteran’s weight gain may have been due to his treatment for his mental health disorder, which would either cause him to develop sleep apnea or maybe even worsen the condition. Based on the foregoing, the Board finds that the evidence is in equipoise as to whether the Veteran’s sleep apnea is related to the Veteran’s service and secondary to his service-connected PTSD. Specifically, the July 2020 VA medical opinion links the Veteran’s obstructive sleep apnea with his service, finding that the documented sleeping problems during service were early manifestations of his current sleep apnea. Thus, the third element of direct service connection is satisfied. Furthermore, July 2020 VA examiner noted that although the previous VA examiner noted that the Veteran’s sleep apnea is likely caused by the Veteran’s obesity, the July 2020 VA examiner opined that the Veteran’s treatment for his PTSD, specifically his medications, are likely the cause of his obesity. As such, the VA examiner opined that the Veteran’s sleep apnea would therefore be related to this PTSD, as his obesity is caused by the PTSD medications. As such, the Board finds that the third element of secondary service connection is satisfied. (Continued on the next page)   The Board acknowledges, when considering all the evidence of record, some of it is favorable and some of it is unfavorable and thus in equipoise. A claim will be denied only if the preponderance of the evidence is against the claim. If the evidence for and against a claim is in equipoise, the claim will be granted. See 38 U.S.C. § 5107. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Abdelbary, 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.