Citation Nr: 21002094
Decision Date: 01/12/21	Archive Date: 01/12/21

DOCKET NO. 18-17 891
DATE: January 12, 2021

ORDER

Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to the Veteran’s service-connected major depressive disorder, is granted.

FINDING OF FACT

The competent, credible, and probative evidence of record establishes the Veteran’s obstructive sleep apnea (OSA) is secondary to his service-connected major depressive disorder.

CONCLUSION OF LAW

The criteria for entitlement to service connection for obstructive sleep apnea (OSA) 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 in the United States Army Reserves from June 2001 until his honorable discharge in March 2006. Relevant to this case, he had periods of active duty for training (ACDUTRA), including June 2001 to August 2001, and June 11, 2005 to June 24, 2005. 

This appeal has been advanced on the Board of Veterans’ Appeals’ (Board) docket pursuant to 38 U.S.C. § 7107(b); 38 C.F.R. § 20.902(c).

This case comes before the Board on appeal from a July 2015 rating decision by the Winston-Salem, North Carolina, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied service connection for obstructive sleep apnea (OSA) on a direct basis, and from an April 2017 rating decision by the same RO, which denied service connection for OSA on a secondary basis.

The Veteran did not request a Board hearing. In December 2018, the Board remanded the case to the RO for further development. Specifically, the Board directed the RO to obtain a new VA medical opinion addressing the Veteran’s weight gain as an intermediary step between his service-connected disabilities and his OSA. The RO obtained a VA-contracted medical opinion in October 2019. In an August 2020 decision, the Board found the October 2019 VA-contracted medical opinion was inadequate and again remanded the case to the RO to seek an addendum opinion. The RO obtained an addendum opinion in October 2020.

The Board finds that there has been substantial compliance with the Board’s previous remand directives regarding the issue on appeal. Stegall v. West, 11 Vet. App. 268, 271 (1998). 

Entitlement to service connection for obstructive sleep apnea, to include as secondary to the Veteran's service-connected major depressive disorder (claimed as posttraumatic stress disorder) associated with residuals of a right inguinal hernia repair.

Service Period

In order to establish his or her entitlement to VA disability compensation benefits, he or she must first establish “veteran” status. See Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006) (status as a “veteran” is one of the five elements of a claim for service-connection benefits). There are three ways to establish veteran status: (1) serve on active duty; (2) serve on a period of active duty for training (ACDUTRA) and incur or aggravate an injury or disease during that period of ACDUTRA; or (3) serve on a period of inactive duty for training (INACDUTRA) and incur or aggravate an injury (but not a disease) during that period of INACDUTRA. Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991); 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a).

“Active duty” means full-time duty in the Armed Forces, other than for active duty for training. See 38 U.S.C. § 101(24), 38 C.F.R. § 3.6(b)(1). 

“Active duty for training” means full-time duty in the Armed Forces performed by Reserves for training purposes. See 38 U.S.C. § 106(c); 38 C.F.R. § 3.6(c)(1). This refers to the two weeks of annual training which each Reservist must perform each year. It may also refer to the Reservist’s initial period of training. 

“Inactive duty for training” means duty (other than full-time) prescribed for Reserves (including commissioned officers of the Reserve Corps of the Public Health Service) by the Secretary concerned under 37 U.S.C. § 206 or any other provision of law. See 37 U.S.C. § 206; 38 C.F.R. § 3.6(d)(1). This refers to the twelve four-hour weekend drills that each Reservist or National Guardsman must perform each year. These drills are deemed to be part-time training. 

Evidentiary Standards

In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. 38 U.S.C. § 7104(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. §§ 1154(a), 5107. 

The Board, as factfinder, is responsible for assessing the credibility and weight to be given to evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336–37 (Fed. Cir. 2006). When assessing the credibility of lay documentary evidence, the Board may consider factors such as facial plausibility, bias, self-interest, internal consistency, and consistency with other evidence of record. Caluza v Brown, 7 Vet. App. 498, 511 (1995); Southall-Norman v. McDonald, 28 Vet. App. 346, 355 (2016). 

The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128‒29 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claims.

Service Connection

VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a “service connection.” 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d).

Generally, in order to be entitled to service connection there must be competent, credible evidence of (1) a current disability, (2) an in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). When these elements are satisfied, service connection may be granted on a direct basis.

Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of, or aggravated by a service-connected disability.  38 C.F.R. §§ 3.310(a), (b). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) a current disability exists, (2) the veteran has a service-connected disability; and (3) 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). Where aggravation is the relied upon theory, compensation may only be provided to that degree over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); Allen, 7 Vet. App. at 448.

Analysis

Direct Service Connection

First element: A current disability

As to the first element, a current disability, the Veteran submitted medical records from his private physician, Dr. M.K., which diagnosed the Veteran, based on observation, with obstructive sleep apnea (OSA) as early as February 2014. He also submitted a sleep study performed by Dr. A.S. in April 2014. At that time, she officially diagnosed the Veteran with OSA in the “mild range.” The Board finds Dr. M.K. and Dr. A.S. are competent to diagnose the Veteran with OSA. The Board also finds their respective diagnoses credible and probative. Therefore, the first element is satisfied. Davidson, 581 F.3d 1313; Pond v. West, 12 Vet. App. 341.

Second element: An in-service incurrence or aggravation of an injury or disease

As to the second element, an in-service incurrence or aggravation of an injury or disease, the Veteran asserted in a June 2014 correspondence that during his military service in the U.S. Army Reserves he suffered from “worsening chronic sleep aenea.” Due to his ACDUTRA status, the Veteran is only eligible for VA benefits on a direct basis if he incurred or aggravated an injury or disease during his ACDUTRA periods. In this case, the Veteran has not identified a particular period of his ACDUTRA that relates to his OSA. 

His wife submitted a statement on his behalf in June 2014. She stated that during the Veteran’s service in the Reserves, he would come home for lunch and “power nap.” She observed and heard him snoring at times, and then she would hear silence. She stated that she observed his mouth to be open, but no air would be flowing to or from him. She described one time where she shook him to wake him up, and when he awoke, he was gasping for air. She stated this occurred over the course of his six years of his Reserves service. 

The Veteran’s friend and fellow servicemember, M.P., submitted a notarized letter in July 2015 in which he stated that he served with the Veteran from 2003 to 2006. During their service together, M.P. stated he observed the Veteran snoring and intermittently stop breathing during his sleep. 

The Board finds the Veteran’s wife and his friend competent to report their observations of the Veteran and their experiences with him, but they are not competent to offer a medical opinion on whether the Veteran’s snoring was a manifestation of OSA. Jandreau v. Nicholson, 493 F.3d 1372, 1377 (Fed. Cir. 2007) (noting general competence of laypersons to testify as to symptoms but not medical diagnosis). The Board does find their statements are credible. Nevertheless, the Board does not find their respective statements to have probative value because they are too general. 

Neither his wife nor his friend provided a particular timeframe when they observed the Veteran’s sleeping disturbances. The Board finds that it would be unreasonable interpret their respective statements to mean that the Veteran’s sleep disturbances occurred everyday over the course of his Reserves service, to include all periods of ACDUTRA and otherwise. Neither the Veteran’s wife nor his friend have stated that they were always with him during his periods of ACDUTRA or that they observed him sleeping during such periods. The Board cannot determine from their statements when the Veteran’s sleeping disturbances occurred. Nor can the Board determine the severity, frequency, or duration of the sleep disturbances to any reasonable degree based on their respective statements. To note, the Veteran’s entire time in the Reserves is not the applicable period by which to analyze his claim; it is only his periods of ACDUTRA during which an in-service incurrence or aggravation of his OSA are of relevance. See 38 U.S.C. § 106(c); 38 C.F.R. § 3.6(c)(1). 

Turning to the medical evidence of record, the Veteran’s service treatment records (STRs) do not indicate sleep disturbances while in service. Compare January 2000 STR (enlistment examination – no sleep issues noted) with November 2004 STR (clinical evaluation does not note sleep issues); June 2005 (same); November 2005 STR (same). The Board recognizes that the Veteran’s STRs from June 2001 to August 2001 are unavailable after reasonable efforts to find them. See July 2013 VA Memorandum. Thus, “the [Board’s] obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule is heightened.” O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). But, the Veteran has not asserted those STRs would contain any relevant information, nor does the record reasonably suggest that they would. On review of all the Veteran’s available VA and private medical records, including his STRs, the Board is unable to locate a relatively specific timeframe that adequately establishes the Veteran suffered an incurrence or aggravation of his OSA or symptoms thereof during his periods of ACDUTRA. Clearly, they do not show evidence of any injury resulting in OSA.  Significantly, it was not until 2014 when Dr. M.K. and Dr. A.S. diagnosed the Veteran with OSA. At that time, the Veteran had been separated from service for approximately eight years. 

Considering the evidence in total, and reading the Veteran’s arguments broadly, the Board finds the preponderance of the evidence is against finding that the Veteran had an in-service incurrence or aggravation of OSA or symptoms thereof during his periods of ACDUTRA. The Veteran’s wife and friend are not competent to provide a medical opinion that the Veteran’s snoring was a manifestation of OSA. The Veteran’s medical records prior to 2014, particularly his STRs, are silent for any sleep issues. Nor has the Veteran provided statements that he suffered from OSA symptomatology during periods of ACDUTRA. 

Therefore, the second element is not satisfied. Davidson, 581 F.3d 1313; Pond v. West, 12 Vet. App. 341.

Third element: A causal link between the Veteran’s current disability and the in-service incurrence or aggravation

Even assuming that the second element, above, is met, as to the third element, the RO obtained a medical opinion from a VA-contracted examiner in October 2020. The examiner conducted a review of the Veteran’s medical records, military records, and associated claims file records using the Acceptable Clinical Evidence (ACE) process. The examiner opined that it was less likely than not that the Veteran’s OSA was incurred in or caused by an in-service event, injury, or illness. The examiner noted that the Veteran’s STRs were silent for an evaluation for or diagnosis of OSA in service. She incorrectly noted that the Veteran was diagnosed with OSA “almost 13 years after service.” She misinterpreted the Veteran’s military service records, concluding 2001 was his discharge date, when it was actually in 2006. Nonetheless, the Board does not find this mistake detracts from her opinion or rationale. The Veteran still did not have complaints of or treatment for OSA until 2014. 

Absent evidence to the contrary, the Board finds the October 2020 VA-contracted examiner is competent. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (the competence of VA examiners is presumed absent evidence to the contrary). The Board also finds the examiner is credible and her opinion is the only probative medical evidence of record. Thus, assuming for the sake of argument that there existed an in-service incurrence or aggravation of the Veteran’s OSA, the preponderance of the evidence would be against finding a causal link between the Veteran’s OSA and his service. 

Accordingly, service connection for OSA is not warranted on a direct service-connection basis.

Secondary Service Connection

First element: A current disability

As to the first element of secondary service connection, a current disability, for the reasons previously discussed, the Veteran has OSA. This element is satisfied. 38 C.F.R. § 3.310(b); Allen, 7 Vet. App. at 448.

Second element: A current service-connected disability

As to the second element, a current service-connected disability, the Veteran is currently service connected for major depressive disorder (claimed as PTSD) associated with residuals of a right inguinal hernia repair. He has been service connected for that disability since June 13, 2014.

This is the service-connected disability that he cites as the basis for his present secondary service-connection claim. The Board observes the Veteran is also service connected for nine additional disabilities, but he does not argue that any of his other service-connected disabilities are the basis for his secondary service-connection claim, nor does a reasonable review of the record raise any such claims. See Robinson v. Mansfield, 21 Vet. App. 545, 552 (2008), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (Board is required to consider theories of entitlement to benefits that are either raised by the claimant or reasonably raised by the record). 

It is important to note that the Veteran’s service-connected major depressive disorder was granted based on a secondary service-connection theory. In July 2015, the RO granted service connection for residuals of a right inguinal hernia repair, which stemmed from an in-service injury that occurred during a period of ACDUTRA. Because the Veteran’s major depressive disorder is secondary to his service-connected hernia residuals, it follows that the Veteran’s OSA can be service-connected based on his service-connected major depressive disorder even though neither his major depressive disorder nor his OSA stemmed from periods of ACDUTRA.

Therefore, the Board finds the second element is satisfied. 38 C.F.R. § 3.310(b); Allen, 7 Vet. App. at 448.

Third element: Whether the Veteran’s current OSA was caused by or aggravated by his service-connected major depressive disorder (claimed as PTSD)

The remaining issue to be resolves is whether the Veteran’s current OSA was caused by or aggravated by his service-connected major depressive disorder. Here, the Board finds the weight of the evidence indicates the Veteran’s OSA was aggravated by his service-connected major depressive disorder.

Causation

“Proximate cause” is defined as “[t]hat which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces injury, and without which the result would not have occurred.” Black’s Law Dictionary 1225 (6th ed. 1990); see Forshey v. West, 12 Vet. App. 71, 74 (1998), aff’d sub nom. Forshey v. Principi, 284 F.3d 1335 (Fed. Cir. 2002), rev’d on other grounds by, Morgan v. Principi, 327 F.3d 1357 (Fed. Cir. 2003) (adopting “proximate cause” definition); VAOPGCPREC 6-03. When there are potentially multiple causes of a harm, an action is considered to be a proximate cause of the harm if it is a substantial factor in bringing about the harm and the harm would not have occurred but for the action. VAOPGCPREC 6-03 (citing Shyface v. Secretary of Health & Human Svs., 165 F.3d 1344, 1352 (Fed. Cir. 1999)). VA General Counsel precedential opinions are binding on the Board. 38 U.S.C. § 7104(c); 38 C.F.R. § 14.507.

In March 2016, the Veteran submitted a medical opinion from his private physician, Dr. H.J., who had been treating the Veteran for posttraumatic stress disorder (PTSD). Dr. H.J. provided an opinion as to aggravation that will be discussed later. Relevant to this analysis, Dr. H.J. discussed scientific studies analyzing the association between psychiatric disorders and sleep apnea. His conclusion was that scientific evidence indicated that PTSD “might not cause sleep apnea.”

The RO obtained a medical opinion in March 2017 from a VA physician who opined that the Veteran’s OSA was less likely than not proximately due to or the result of the Veteran’s major depressive disorder. The VA examiner reasoned that there has been no proven link that sleep apnea causes PTSD or depression/anxiety, or that PTSD or depression/anxiety causes sleep apnea. The examiner conceded that PTSD has been associated with central sleep apnea, but not obstructive sleep apnea, “and certainly no[t] depression.” March 2017 VA Medical Opinion.

The RO obtained a second opinion in August 2017 from another VA medical professional who stated that she agreed with the March 2017 VA examiner’s opinion. The August 2017 VA examiner reasoned that “PTSD, depression, and panic attacks do not cause sleep apnea. There may be disturbances with sleep but that is a separate diagnosis from sleep apnea.” August 2017 VA Medical Opinion. The August 2017 examiner stated that the “most common cause of sleep apnea is aging, being male and gaining weight. There is a relationship between people with sleep apnea and depression but that is only with [traumatic brain injuries] and central sleep apnea not obstructive.” August 2017 VA Medical Opinion.

In May 2017, the Veteran submitted a second opinion from Dr. H.J. as to aggravation, which will be discussed later. Relevant to this analysis, Dr. H.J. discussed a large cohort study that analyzed whether psychiatric disorders were commonly associated with sleep apnea in Veterans Health Administration beneficiaries. Dr. H.J. stated, just as he did in his March 2016 opinion, that “neither diagnosis causes the other.” 

The RO obtained an October 2019 medical opinion from a VA-contracted examiner who opined that the Veteran’s OSA was less likely than not caused by his service-connected major depressive disorder. The examiner relied on the lack of medical studies that documented any of the Veteran’s mental health disorders as causes of OSA. The examiner also opined that “[o]besity is a risk factor for OSA, but there is no evidence in the provided medical records that cite these mental health disorders as a cause of this [V]eteran’s ‘weight problem.’ Also, there are no medical studies or medical evidence that directly cite a prior inguinal herniorrhaphy as a cause of obesity.” October 2019 VA-Contracted Medical Opinion.

Finally, the RO obtained an October 2020 VA-contracted medical opinion. The examiner opined that the Veteran’s OSA was less likely than not proximately due to or the result of the Veteran’s service-connected major depressive disorder. The examiner noted the most common cause of OSA in adults was excess weight and obesity, which was associated with excess soft tissue of the mouth and throat.  Based on a review of the Veteran’s medical records, the examiner observed that the Veteran weighed 171 pounds at 5’ 7.5’’, accounting for an overweight BMI of 26.4, during his Army Reserve Retention Exam in November 2004. That examination was silent for depression, and his psychiatric examination was normal. The examiner also observed that there was no formal diagnosis of depression until 2015. Thus, his weight gain preceded his depression. The examiner agreed that there was some correlation between sleep disorders and depression, but she concluded that “it is generally felt that sleep disorders can cause depression, not that depression causes sleep disorders.”  Moreover, when a sleep issue was associated with depression, “it was most commonly insomnia, not OSA.” October 2020 VA-Contracted Medical Opinion.

The Board finds the each of the foregoing medical professionals is competent to opine on whether the Veteran’s OSA was caused by his service-connected major depressive disorder. See generally Cox, 20 Vet. App. at 569. The Board also finds each of the foregoing medical professionals’ opinions and rationales are credible. Buchanan, 451 F.3d at 1337. The Board finds that each medical professional properly considered the Veteran’s medical history, whether it was through review of his medical records or due to intimate, personal treatment of the Veteran with knowledge of his medical history, and properly considered relevant lay and/or scientific evidence. Significantly, each medical professional came to the same conclusion, OSA is not caused by psychiatric disorders, to include the Veteran’s major depressive disorder. The Board finds each opinion and respective rationale probative. 

Therefore, as there is no competent, credible, and probative evidence to the contrary, the Board finds the preponderance of the evidence is against finding that the Veteran’s OSA was caused by this major depressive disorder. 

Aggravation

“Aggravation” in the context of secondary service connection is demonstrated when there is “[a]ny increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease.” 38 C.F.R. § 3.310(b).

The Veteran submitted two opinions from Dr. H.J. as to aggravation. In his March 2016 opinion, Dr. H.J. opined that it was as likely as not that the Veteran’s OSA was aggravated by his PTSD. Dr. H.J. was the Veteran’s treating physician as to his PTSD. Dr. H.J. relied on a medical study that suggested that during rapid eye movement (REM) a person’s muscles become paralyzed. He stated that sleep mechanisms are particularly dysfunctional in patients with PTSD, and OSA is often more common in REM sleep than in non-REM sleep. As such, he reasoned that the Veteran’s PTSD might exacerbate his OSA symptoms because there was more REM sleep in people with PTSD thus leading to a decrease in the muscle tone of the airway. In addition, he cited a “large cohort” study that looked at the association between several psychiatric disorders and sleep apnea among four million veterans. The study revealed that co-morbidity with depressive disorders was 21.8% and 11.9% with PTSD, which indicated a significant association when compared to the general population. 

In Dr. H.J.’s May 2017 correspondence, he again opined that the Veteran’s OSA was at least as likely as not aggravated by his PTSD. He again cited the large cohort study that he cited in his March 2016 opinion. He also cited another study in which a medical professional concluded that sleep apnea could worsen the symptoms of anxiety and depression, which was consistent with the conclusions of the large cohort study. Dr. H.J. also opined that it was at least as likely as not that the Veteran’s PTSD was worsened by his OSA. 

Absent evidence to the contrary, the Board finds the Dr. H.J. is competent to opine as to whether the Veteran’s OSA was aggravated by his major depression disorder. The Board also finds Dr. H.J. is credible. The Board finds the Dr. H.J.’s opinions have significant probative value. They are based on intimate knowledge of the Veteran’s major depressive disorder (claimed as PTSD) and are supported by clear and persuasive rationales, which properly cite relevant medical studies on the association between OSA and psychiatric disorders.

The Veteran also submitted an April 2017 opinion from a treating physician, Dr. J.B., who opined that after review of the Veteran’s medical records, it was more likely than not that his OSA was exacerbated by his PTSD and that his OSA was at least as likely as not due in part to his weight gain that has occurred over the years due to his stress from PTSD. 

Absent evidence to the contrary, the Board finds the Dr. J.B. is competent to opine as to whether the Veteran’s OSA was aggravated by his major depression disorder. The Board also finds Dr. J.B. is credible. The Board does not afford this opinion any probative value. Dr. J.B. provided no reasoning for her opinions. She merely reviewed the Veteran’s medical records and came to a conclusion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (“It is the fully articulated, sound reasoning for the conclusion . . . that contributes probative value to a medical opinion.”).

The RO obtained an August 2017 VA medical opinion as to aggravation. The examiner opined that Dr. J.B.’s opinion, that the Veteran’s OSA was exacerbated by his PTSD, was not supported by research. She further stated that PTSD can be exacerbated by a lack sleep, but “OSA is a medical condition that requires collapse of the airway and has nothing to do with stress of PTSD.”

Absent evidence to the contrary, the Board finds the August 2017 VA examiner is competent to opine as to whether the Veteran’s OSA was aggravated by his major depression disorder. The Board also finds she is credible. The Board affords this opinion little probative value. The August 2017 VA examiner’s rationale was directly contradicted by the Dr. H.J.’s opinions in which he cited studies in support of the conclusions that psychiatric disorders may exacerbate OSA. The August 2017 VA examiner did not address these studies or cite contrary studies; instead, she cited “research.” The Board finds her rationale is underdeveloped. Nieves-Rodriguez, 22 Vet. App. at 304 (2008).

The October 2019 VA-contracted examiner’s negative medical-nexus opinion is also fatally flawed, even more so than the August 2017 VA medical opinion. The examiner opined that “the claimed condition, which clearly and unmistakably existed prior to service” was not aggravated beyond its natural progression by an in-service event, injury, or illness. The Board has not located any credible evidence, direct or circumstantial, that indicates the Veteran’s OSA existed prior to service. The examiner himself even noted that the Veteran’s OSA was not diagnosed until 2014. Thus, this opinion is not relevant to the issue at hand, which is whether the Veteran’s OSA was aggravated by his major depressive disorder. The Board finds this opinion not credible and, thus, affords it no probative value.  

Finally, the RO obtained an October 2020 VA-contracted medical opinion. The examiner was able to determine a baseline level of severity of the Veteran’s OSA, which was “mild obstructive sleep apnea on May 16, 2014.” She opined that the current level of the Veteran’s OSA was not greater than the baseline; however, she provided no basis for this conclusion. She then opined that the Veteran’s OSA was less likely than not aggravated beyond its natural progression by the Veteran’s major depressive disorder. The examiner reasoned that if his OSA was aggravated beyond natural progression by his depression, then it would be expected that his OSA would be moderate or severe in degree and that it would not respond well to treatment. She further reasoned that the Veteran’s weight gain was noted as early as November 2004, and his hernia did not occur until 2006, thus his weight gain preceded his depression and hernia.

Absent evidence to the contrary, the Board finds the October 2020 VA-contracted examiner is competent to opine as to whether the Veteran’s OSA was aggravated by his major depression disorder. The Board also finds she is credible. The Board finds her opinion as to the Veteran’s baseline is significantly probative, but the Board finds her opinion as to aggravation and supporting rationale have little probative value. The issue with the October 2020 VA examiner’s rationale is that she does not explain how she determined the Veteran’s OSA has not increased in severity since 2014. She has also not explained what level of increase is necessary to determine, in her professional medical judgement, when the Veteran’s OSA would be considered to have been “increased” or “aggravated” beyond “mild.” Moreover, she acknowledged the Veteran was receiving treatment, but she did not discuss whether the degree of treatment to control his OSA has been constant, which would logically indicate no worsening, or whether it has been increased such that it would logically indicate worsening. 

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Weighing Dr. H.J.’s medical opinions and rationales against those of the August 2017 VA examiner and October 2020 VA-contracted examiner, the Board finds Dr. H.J.’s opinions and rationales are more probative. Therefore, the Board finds the third element, aggravation, is satisfied. 38 C.F.R. § 3.310(b); Allen, 7 Vet. App. at 448.

Accordingly, the Veteran is entitled to service connection for OSA as aggravated by his major depressive disorder is granted.

 

 

M. Tenner

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	J. F. Sawka, 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.