Citation Nr: 21061443 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 17-21 720 DATE: October 4, 2021 ORDER Service connection for sleep apnea is granted. FINDING OF FACT The Veteran's current sleep apnea is related to his service-connected posttraumatic stress disorder (PTSD), traumatic brain injury (TBI), and headache disorder. CONCLUSION OF LAW The sleep apnea is proximately due to or the result of the Veteran's service-connected PTSD, TBI, and headache disorders. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from August 1991 to June 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in August 2019. A transcript of that hearing has been associated with the claims file. The Board previously remanded the Veteran's claim for further development in December 2019 and January 2021. The claim is back before the Board for appellate review. Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Law and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 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). Service connection may also 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 caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when 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; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran contends that he had symptoms of sleep apnea during active duty service, but the condition was not diagnosed or treated during that time. He has stated that he complained of sleep problems and breathing interruptions during sleep while in service, but that such complaints were not documented. Service treatment records are indeed silent as to any sleep apnea diagnoses or symptoms. VA medical records show that the Veteran was diagnosed with sleep apnea in July 2010 after a May 2010 sleep study. VA medical records document treatment of the disorder, but do not contain etiology statements. The Veteran submitted several lay statements in support of his claim in June 2014. A lay statement submitted by his former wife stated that they were married in 1992, during active duty service, and noted that the Veteran would snore, catch his breath, and wake during the night. Two lay statements from individuals who served with the Veteran reported that during service, the Veteran would snore and gasp for air at night and was tired during the day. The Veteran was then afforded a VA examination in connection with his claim in January 2020. The examiner confirmed a diagnoses of sleep apnea. The medical opinion portion of the report, however, was inadequate and contradictory. For example, the examiner first indicated that the condition was more likely than not due to military service and noted that the onset of the condition was documented in the service treatment records. This is inaccurate. The examiner then opined that the Veteran's sleep apnea was less likely than not due to his service-connected PTSD. However, in support of that opinion the examiner indicated that the medical literature did not support a medical relationship between the two conditions, but then stated that more research was needed to determine if there was a link between the conditions. As such, the January 2020 VA examination is not probative evidence. The agency of original jurisdiction (AOJ) obtained another VA medical opinion later in January 2020, in an attempt to clarify the first January 2020 VA medical opinion. The VA examiner opined that the sleep apnea was less likely caused by service, however, it failed to correct the inadequacies of the January 2020 VA examination. The AOJ then obtained an August 2020 addendum opinion in another attempt to clarify the contradictions in the January 2020 VA examination report. However, as the Board previously found, that negative opinion was also inadequate as it was largely based on the absence of an in-service diagnosis and failed to consider the lay statements of record regarding the Veteran's onset of symptoms. It also did not address the inadequate opinion regarding secondary service connection. The Board then remanded the Veteran's claim for another VA medical opinion in January 2021. Such an opinion was obtained in February 2021. That VA examiner opined that the Veteran's sleep apnea was less likely than not due to service. In support of that opinion, the examiner noted that there was no evidence of sleep apnea in service. He noted that the Veteran had reported generalized symptoms since service, but found that such symptoms did not diagnose or substantiate a diagnosis of sleep apnea. He went on to opine that snoring, easily waking, insomnia, difficulty falling asleep, fitful sleep, movements while sleeping, gasping, daytime somnolence and fatigue are generalized symptoms and may be associated with multiple conditions. He further noted that psychological conditions often have sleep disturbances with similar symptoms, which are unrelated to the primary mechanism of sleep apnea. He stated that there was no physiologic or anatomic mechanism by which psychological comorbidities including PTSD, anxiety and depression could impact sleep apnea, either as a cause or aggravation. He noted that this was accepted medical knowledge and practice. Therefore, he opined that it was less likely than not that the Veteran's sleep apnea had its onset in service or was due to events in service. He further opined that it was less likely than not that the Veteran's sleep apnea was due to psychological comorbidities and/or PTSD. In that regard, he found that the Veteran was diagnosed with minimal sleep apnea in 2010. He noted that CPAP adjustments are common throughout the natural course of sleep apnea and generally increase with age, changes in activity, weight gain etc. and found that such changes do not necessarily represent aggravation beyond the natural course. Finally, he found that the medical articles submitted by the Veteran, have appeared in many claims by veterans. He opined that the articles merely point to areas of potential research and an association of sleep apnea and psychological comorbidities, but did not establish cause. He opined that current, widely accepted, peer-reviewed literature has not established psychological conditions as a cause or aggravating factor for sleep apnea. The Veteran then submitted an opinion statement from Dr. F.N., a neuropsychologist, in April 2021. Dr. F.N. noted that he had reviewed the service treatment records and VA medical records before opining that it was more likely than not that the Veteran's sleep apnea was caused by his service-connected PTSD, TBI, and migraine headaches. He opined that PTSD contains both mental and emotional/physical components. He cited to marked alterations in arousal and reactivity, which were both voluntary and involuntary. He noted that PTSD could cause feelings of being "keyed up" at night and/or sleep disturbances and further noted that a part of sleep disturbances for severely anxious people was sleep apnea. Dr. F.N. then included a lengthy discussion, which included a discussion of medical literature and studies, some of which Dr. F.N. stated were peer-reviewed, that showed an association between the disorders. Dr. F.N. then addressed predisposing factors for sleep apnea as well as the factors specific to the Veteran and discussed why each factor was not the cause of the Veteran's sleep apnea. He then confirmed his opinion that the Veteran's sleep apnea was due to his service-connected PTSD, TBI, and migraine headaches. The Board finds that the opinions of the February 2021 VA examiner and Dr. F.N. permits application of the reasonable doubt doctrine as the opinions place the evidence of record at least in equipoise as to whether the Veteran's sleep apnea was caused by or related to his service-connected disorders. Accordingly, resolving all reasonable doubt in the appellant's favor, the Board finds that service connection for the Veteran's sleep apnea is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Rideout-Davidson, 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.