Citation Nr: 21005022 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 17-25 753 DATE: January 28, 2021 ORDER Entitlement to service connection for sleep apnea as secondary to service-connected PTSD is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, the evidence of record is in relative equipoise as to whether his sleep apnea is aggravated by his service-connected PTSD. CONCLUSION OF LAW The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 2001 to April 2005. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). In May 2017 the Veteran perfected his appeal to the Board by submitting a timely VA Form 9 (Appeal to Board of Veterans’ Appeals) substantive appeal. In May 2020, the Veteran filed an Appeals Modernization Act (AMA) VA Form 10182 (Decision Review Request: Board [Notice of Disagreement]) indicating his disagreement with an August 2017 Statement of the Case (SOC). However, since more than 60 days had passed since the date on the August 2017 SOC letter and more than one year passed since the date of the VA rating decision on appeal, the Veteran was deemed to be ineligible to enter into the AMA system at that time. See Notification Letter to Veteran dated July 2020. Therefore, his appeal for sleep apnea remains in the legacy appeal (non-modernized) system. Furthermore, in May 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Service Connection Entitlement to service connection for sleep apnea as secondary to service-connected PTSD The Veteran is seeking entitlement to service connection for sleep apnea, to include as secondary to service-connected PTSD. See November 2016 NOD. Sleep apnea is defined as transient periods of cessation of breathing during sleep. The two primary types are central sleep apnea and obstructive sleep apnea. See Dorland’s Illustrated Medical Dictionary, 118 (31st ed. 2007). Obstructive sleep apnea is defined as sleep apnea resulting from collapse or obstruction of the airway with the inhibition of muscle tone that occurs during REM sleep. Id. The Veteran is competent to report that he has difficulty sleeping. Additionally, the RO previously found that the Veteran has a current sleep apnea disability. See March 2017 Statement of the Case (citing private medical records that show sleep apnea was diagnosed by a sleep study in January 2014). Here, it appears the Veteran’s central theory for entitlement to service connection for sleep apnea is one of secondary service connection. More specifically, he contends that his sleep apnea is proximately due to, or aggravated by, his service-connected PTSD. 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) aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Service connection has been established for PTSD. The Board has considered the evidence of record and finds that the evidence of record is in relative equipoise as to whether the Veteran’s sleep apnea is aggravated by his PTSD. In August 2017, the Veteran was afforded a VA examination to ascertain the nature and etiology of his claimed sleep apnea condition. The examiner confirmed that the Veteran has obstructive sleep apnea. The examiner opined the Veteran’s obstructive sleep apnea is less as likely than not (50 percent or lesser probability) proximately due to, or the result of, posttraumatic stress disorder. In support, the examiner noted the opinion was based on a thorough review of the Veteran’s file, review of all available medical records and current peer reviewed medical literature and that based on a physical examination and review of the file, the Veteran’s obstructive sleep apnea was most likely related to his obesity and less likely due to his PTSD. Thereafter, in a September 2017 VA medical opinion, the examiner remarked that given Veteran’s history, as well as his “signs and symptoms,” it is likely that his sleep apnea and his PTSD are related conditions, likely aggravating it. See September 2017 VA Sleep Apnea DBQ medical opinion. Based on a thorough review of the evidence, the Board finds that the August 2017 and September 2017 VA medical opinions hold equal probative weight. Importantly, the August 2017 VA examiner opined that the Veteran’s sleep apnea was “less likely than not” proximately due to or the result of the Veteran’s service-connected PTSD because of the Veteran’s obesity. The Board finds this opinion to be highly probative on the “causation” element of secondary service connection as it demonstrates that sleep apnea is caused by a physical change in the body and not a psychological one. However, turning to the “aggravation” element of secondary service connection, the Board observes that the August 2017 VA examiner did not provide an adequate opinion addressing whether the Veteran’s sleep apnea was aggravated by his service-connected PTSD. Barr v. Nicholson, 21 Vet. App. 311 (2007); Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Specifically, the examiner offered this opinion without identifying a baseline of severity or why the Veteran’s sleep apnea had not increased in severity as a result of his PTSD. Therefore, the Board finds the August 2017 opinion to be of no probative value on the issue of “aggravation” because the examiner did not address aggravation beyond a natural progression as related to his service-connected PTSD condition. Similarly, while the September 2017 VA examiner’s opinion supports the Veteran’s contention that his PTSD likely aggravated his sleep apnea condition, there is no indication in the opinion that the examiner reviewed the claims file or considered the evidence of record in its entirety when s/he offered the opinion. Nonetheless, the opinion provides competent, credible and minimally probative evidence as to the issue of “aggravation,” but does not discuss whether the Veteran’s sleep apnea is caused by intervening or superseding factors other than his PTSD condition. Therefore, the Board assigns the September 2017 opinion little probative value as to the issue of the “causation” element of secondary service connection. More recent VA treatment records show the Veteran complained of having difficulty staying on his CPAP machine at night and that he was scared to go to sleep due to an incident where he woke up in the middle of the night gasping for air and suffocating. See VA treatment records and email messaging system records from May 2018. In response, the Veteran’s primary care VA psychologist stated, “Sleep apnea is very bad for your health, but usually the “waking up gasping” is a symptoms of PTSD (Sleep apnea will cause you to have difficulty breathing/temporary suffocating, but you won’t notice it, other than feeling fatigue in the morning.). However, you are right that the PTSD and sleep apnea both make the other worse. So, it’s very important to help you get to a place where you are able to wear your CPAP all night long without taking it off, and no anxiety episodes [occur] at night.” Id. Despite not addressing the issue of “aggravation” directly, such an exchange between the Veteran and his primary care psychologist at the VA supports the September 2017 VA medical opinion that the Veteran’s “signs and symptoms” of PTSD likely are aggravating his sleep apnea condition and provides the Board with competent, credible and probative evidence to support the Veteran’s claim. Lastly, in April 2020, the Veteran submitted a private medical opinion that opined: (1) it is at least likely as not the Veteran’s weight gain and obesity is due to his service-connected PTSD; (2) it is at least likely as not his current diagnosis of Obstructive Sleep Apnea (OSA) is secondary to, related to, and/or aggravated by the weight gain and obesity from PTSD; and (3) it is at least likely as not that without the Veteran’s weight gain and obesity his OSA condition would not have occurred. The private examiner reported that she reviewed all available medical and VA records of the Veteran including his lay statements and previous C&P examinations. In support, the examiner cited to medical literature and her own clinical experience and concluded that the Veteran’s progressive weight gain and current obesity condition developed chronologically after his mental health stressor event in service, as shown by the evidence of record, which caused the Veteran to be placed on medication with known pharmacology that promotes weight gain, which then was the primary cause of his sleep apnea condition. Based on the foregoing, the Board finds the private medical opinion provides competent, credible and highly probative evidence to support the Veteran’s claim that his sleep apnea was aggravated by his service-connected PTSD condition. While the August 2017 VA examiner opined that the Veteran’s sleep apnea is not proximately due to his PTSD, it did not address the theory of aggravation. In contrast, the September 2017 VA opinion, May 2018 VA medical treatment records and April 2020 private medical opinion, taken together, provide competent, credible and probative evidence to show that the Veteran’s PTSD symptoms affect his ability to continuously use the CPAP machine as needed and that weight gain was caused by his PTSD that resulted in, at least, the aggravation of his sleep apnea condition. While the VA medical opinions are flawed, the Board has decided not to prolong this appeal by remanding for another medical opinion addressing the etiology of the Veteran’s sleep apnea. As the evidence is in relative equipoise, the claim must be decided in the Veteran’s favor. As such, service-connection for sleep apnea as aggravated by service-connected PTSD is granted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher M. Davidson 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.