Citation Nr: 21065307 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 15-35 045 DATE: October 25, 2021 ORDER Entitlement to service connection for obstructive sleep apnea as secondary to service-connected posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT The evidence is at least in approximate balance as to whether the Veteran's obstructive sleep apnea is aggravated by service-connected PTSD. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1985 to August 1996. This matter came before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the June 2013 rating decision also denied the Veteran's claim for service connection for posttraumatic stress disorder (PTSD). However, a subsequent rating decision in March 2017 granted the claim for service connection for PTSD and assigned a 50 percent evaluation, effective from January 19, 2017. In October 2018, the Veteran testified at a video conference hearing before a Veterans Law Judge (VLJ) no longer at the Board; a transcript of that hearing is of record and has been reviewed. In April 2021, the Veteran was offered the opportunity to testify at a hearing before another VLJ. See 38 U.S.C. § 7107(c); 38 C.F.R. § 20.604. Because the Veteran responded that he did not wish to appear at another Board hearing, see April 2021 correspondence, the Board will proceed with adjudication. In April 2019, the Board reopened the Veteran's claim of entitlement to service connection for obstructive sleep apnea and remanded the claim for further development. The claim was again remanded by the Board in May 2021. Service Connection Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310 (a) (2018). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability. See 38 C.F.R. § 3.310 (b) (2017); Allen v. Brown, 8 Vet. App. 374 (1995). The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. A claimant bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). In making its ultimate determination, the Board must give an appellant the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Id. at 1287 (quoting 38 U.S.C. § 5107(b)). Analysis The Veteran has asserted that his obstructive sleep apnea is directly related to service, stating that he had snoring and apneic episodes in service, and that sleep apnea was not being diagnosed in the 1980s. See VA 21-4138, Statement in Support of Claim, received September 17, 2012; Correspondence, received July 28, 2020. The Veteran has a current diagnosis of obstructive sleep apnea since July 2004. See, e.g., Sleep Analysis Summary with CPAP dated July 22, 2004. However, there is no evidence of any complaints of, or treatment for, sleep problems in the Veteran's service treatment records. On a report of medical history, completed for National Guard Service in February 1998, the Veteran checked "no" when asked if he then had or ever had frequent trouble sleeping. Moreover, the earliest post-service report of a possible sleep disability is noted in the June 2004 private treatment note of T.P, MD, reflecting that the Veteran complained of snoring and possible apnea events, and it was recommended that the undergo a sleep study. See Medical Treatment Record Non-Government Facility, received June 22, 2006. At his hearing in October 2018, the Veteran testified that he was diagnosed with sleep apnea by sleep study after being referred by his physician due to problems sleeping. The Veteran testified that he had surgery to remove his tonsils and adenoids, that physicians found he had a tumor growing in his throat down to his lung, about the size of a softball, and his doctor said it had been there about 20 to 25 years. He testified that the sleep doctor told him that his sleep apnea was extremely bad and connected to his snoring in the military dating from 1989 and the tumor. A January 2019 statement from a service buddy reports that the Veteran had a bad snoring problem when they were roommates in 1986 to 1987 and that it was worse when they were again together from 1992 to 1994. The Veteran's former spouse reported that she was married to the Veteran for 19 years dating from 1991, and that he had suffered from severe snoring and continuously stopped breathing in his sleep during their marriage. A VA medical opinion from November 2019 concludes that the Veteran's obstructive sleep apnea was less likely than not incurred in or caused by the Veteran's service. This opinion was based on examination of the Veteran and a review of the Veteran's claims file and treatment records. The examiner explained that obstructive sleep apnea occurred when muscles which supported the structures hanging in the back of the throat relaxed too much, causing airway narrowing, which can then lower the level of oxygen in your blood, which the brain senses and rouses the individual from sleep to open the airway. The individual awakens with a transient shortness of break and the pattern can repeat during the night. The examiner noted the lay statements provided regarding snoring in service but noted that STRs were silent of any complaints specific to sleep apnea in service to substantiate the lay statements. The examiner further cited to a medical article which concluded that although snoring was common in sleep apnea patients, it also occurred in patients without obstructive sleep apnea, and snoring alone did not lead to a diagnosis of obstructive sleep apnea. In June 2021, another VA examiner reviewed the Veteran's claims file. The examiner opined that the Veteran's obstructive sleep apnea was less likely than not incurred in or due to service. The examiner acknowledged the Veteran's testimony and lay statements and explained that there were no complaints or records or poor sleep during service which would explain the Veteran's current obstructive sleep apnea. The examiner noted that the Veteran gained weight in service which could be a risk factor but could not say that was the cause. On review, the Board finds that the weight of the evidence is against finding that the Veteran's sleep apnea had its onset during service or is otherwise related to it. Evidence regarding a nexus includes lay statements regarding snoring and medical evidence. The Veteran and the laypersons who submitted statements are competent to describe symptoms of snoring that they experienced or witnessed; however, under the facts of this case, they are not shown to have the requisite medical expertise needed to provide a competent opinion regarding the etiology of a complex medical condition such as sleep apnea, which requires extensive medical testing to diagnose and involves the interaction of multiple systems within the body. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). On the contrary, the Board assigns high probative value to the July 2019 and June 2021 VA examiners' opinions and finds them to be highly probative, competent and persuasive medical evidence in this case. The opinions, taken together, are based on the Veteran's medical history, consideration of the lay reports of snoring, and are supported by a clear explanation as to the pathophysiology of sleep apnea sufficient for the Board to make an informed decision. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There are no other medical opinions or competent medical evidence of record that contradict the July 2019 and June 2021 opinions. Moreover, no medical professional has linked the Veteran's obstructive sleep apnea to his active-duty service. While the Veteran is competent to report a medical diagnosis or opinion that was reported to him, and he indicated that a physician had connected it to his snoring in service, and his report is credible, the Board finds the multiple medical opinions that are of record and contain sufficient rationale to be more probative. Accordingly, the preponderance of the evidence is against the claim for service connection for sleep apnea on a direct basis and there is no doubt to be resolved. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In the alternative, the Veteran asserts that his obstructive sleep apnea is secondary to his service-connected PTSD. See Form 9, received September 25, 2015. The Veteran has a current diagnosis of obstructive sleep apnea, since July 2004. See, e.g., Sleep Analysis Summary with CPAP dated July 22, 2004. On review, the Board finds that the evidence is at least in approximate balance as to whether the Veteran's obstructive sleep apnea is aggravated by the service-connected PTSD. Evidence against the claim includes a November 2019 VA examination in which the examiner opined that the Veteran's obstructive sleep apnea was less likely than not proximately due to or the result of the Veteran's service-connected disorder. The examiner reasoned that while there is a correlation between PTSD and sleep apnea, the medical evidence is not strong enough to support more than a theoretical causative link of obstructive sleep apnea due to PTSD. This includes consideration of the theory that chronic activation of stress hormones from PTSD leads to neural sensitization allowing upper airway dysfunction such as sleep apnea. The examiner explained that obstructive sleep apnea was not aggravated beyond its natural progression as the Veteran had a history of being able to tolerate his CPAP with good compliance and CPAP adjustments could correct for any change in sleep apnea conditions over time. In support of his claim, the Veteran submitted a March 2014 letter authored by Dr. R.R. who treated the Veteran for obstructive sleep apnea at a sleep disorders center. The physician noted the Veteran's prognosis was fair with treatment and that the Veteran reported compliance with CPAP. The physician opined that the Veteran's PTSD aggravated his sleep apnea treatment. The Veteran also submitted an October 2018 private opinion authored by T.M.C, a psychotherapist. The psychotherapist opined that the Veteran's sleep apnea was aggravated by his PTSD. The psychotherapist reported that the Veteran had a high sensitivity to anything touching him or being startled at the least little noise and that as such, the Veteran reported that he was prone to wake suddenly if the hose touched him. As a result, the Veteran has torn it off and tossed it across the room. The Veteran also reported that he was better than he was prior to the CPAP, but still awoke feeling sleepy and tired. The psychotherapist reasoned that chronic activation of stress hormones from PTSD was known to lead to neural sensitization leading to upper airway dysfunction thereby creating a nexus between the Veteran's PTSD and sleep apnea. The psychotherapist also referenced prior Board decisions and names of medical literature cited by VA doctors and prior claims which supported a conclusion of sleep apnea as secondary to PTSD. In this regard, the Board notes that each Board decision is based on review of the evidence of record in a particular claims file and, accordingly, has no precedential value toward adjudication of appeals by other claimants, such as this Veteran, who may appear to be similarly placed. See 38 C.F.R. § 20.1303. Furthermore, although the psychotherapist named articles used by VA doctors and in prior claims, the articles do not establish a nexus in this particular Veteran's case. Thus, the Board affords less probative value to this opinion. At his hearing in October 2018, the Veteran testified, in pertinent part, that sometimes the mask will startle him, and he will snatch it off while sleeping and has torn two to three masks and damaged sleep machines. He added that he wakes up with nightmares due to his PTSD, can't get any sleep, and that it aggravates his sleep apnea. Pursuant to the Board's May 2021 remand, in June 2021, a different VA examiner reviewed the Veteran's claims file. The examiner opined that the Veteran's obstructive sleep apnea was at least as likely as not aggravated beyond its natural progression by his PTSD. The examiner reasoned that literature shows that PTSD can worsen/aggravate PTSD and referenced a medical article which suggested that the presence of PTSD negatively affected CPAP use and that poor adherence to CPAP use was common. On review, the Board finds that the evidence is at least in approximate balance as to whether the Veteran's obstructive sleep apnea is related to his service-connected PTSD. Both the Veteran's sleep doctor and a VA examiner have opined that the Veteran's PTSD as likely as not aggravates his obstructive sleep apnea. While the November 2019 VA examiner said there was no aggravation, this was based on only on a finding of good compliance with CPAP use. Although VA treatment records and a private treatment record from the sleep center show good compliance with CPAP use, there are also VA records which show orders for supplies for the CPAP and upgrading the CPAP. The Board is unable to ascertain whether those orders are due to damage or for regular use. The Veteran has competently testified that he is prone to suddenly waking, throwing his mask off, and having damaged masks. The Board notes that an inability or difficulty in wearing a CPAP mask interferes with the prescribed treatment for his sleep apnea. Thus, the Board places higher probative value on the two opinions of the June 2021 VA examiner and the private sleep physician regarding aggravation of obstructive sleep apnea by the service-connected PTSD. In this regard, the Board notes a precedential decision by the United States Court of Appeals for Veterans Claims (Court) in Ward v. Wilkie, 31 Vet. App. 233, 239 (2019) held aggravation under 38 C.F.R. § 3.310(b) does not require that there be "permanent worsening" of the nonservice-connected disability. Here, while the first VA examiner indicated that aggravation beyond the natural progression was not shown, the Court's holding in Ward indicates that such is not required. As such, the second VA examiner's indication of only temporary aggravation is sufficient to support secondary service-connection to PTSD based on aggravation. (Continued on the next page) While each opinion has its deficiencies, and an addendum opinion could be requested, the current evidence is sufficient to decide the claim. A remand could therefore be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Accordingly, based on the competent and credible medical evidence on record, and resolving any reasonable doubt in favor of the Veteran, the Board finds that the evidence is at least in approximate balance as to whether the currently diagnosed obstructive sleep apnea is aggravated by the service-connected PTSD. Service connection is therefore warranted. Marissa Caylor Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Beach, 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.