Citation Nr: 21070341 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 17-23 404 DATE: November 23, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is granted. FINDING OF FACT The most probative evidence is in relative equipoise concerning whether the Veteran's obstructive sleep apnea was aggravated by his service-connected PTSD. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria to establish service connection for obstructive sleep apnea are met. 38 U.S.C. §§ 1110, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Navy from September 1974 to January 1977. This case comes to the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with the AOJ's determination, and the present appeal ensued. The Veteran's claim was previously before the Board in April 2019 and August 2021. Most recently, in August 2021, the Board remanded the Veteran's claim to provide him with an adequate VA examination. Entitlement to service connection for obstructive sleep apnea Service connection may be granted for disability which is proximately due to or the result of service-connected disability. 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). The Board notes that it has reviewed all of the evidence in the record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim being decided. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis Throughout the pendency of his appeal, the Veteran has asserted his appeal under the theories of direct and secondary service connection. Specifically, he has claimed that his obstructive sleep apnea was either (1) the result of his active service or (2) caused or aggravated by his service-connected PTSD. While not doubting the Veteran's assertions regarding the former theory of entitlement, for the reasons discussed below, the Board concludes that the evidence of record is at least in relative equipoise concerning the latter theory of entitlement resulting in a full allowance of the benefits sought. Accordingly, the Board's analysis of the Veteran's appeal will focus on the theory of secondary service connection. The evidence of record unambiguously reflects a diagnosis of obstructive sleep apnea during the appeal period, and, by virtue of prior rating decisions, service connection for PTSD has been in effect since May 2013. In light of above, elements (1) and (2) necessary to establish secondary service connection are amply demonstrated, and the crux of the Veteran's appeal is whether the most probative evidence reflects that his current obstructive sleep apnea was caused or aggravated by his service-connected PTSD. The record includes three medical nexus opinions addressing the etiology of the Veteran's obstructive sleep apnea under the theory of secondary service connection, and the Board will address them in turn. As directed by the Board in the April 2019 remand, the Veteran was provided a VA examination in July 2020. Unfortunately, the examiner concluded that no record of sleep apnea was included in the Veteran's file, and therefore provided a negative opinion. As such, the examiner did not address the etiology of the Veteran's obstructive sleep apnea, initially diagnosed in July 2015. Accordingly, the July 2020 opinion will be discussed no further. Consequent to the Board's August 2021 remand, a VA medical opinion was provided, without affording the Veteran a medical examination as directed by the remand. After a review of the Veteran's complete VA file, the VA examiner provided an unfavorable opinion regarding whether the Veteran's PTSD aggravated his obstructive sleep apnea. The examiner stated that obstructive sleep apnea is caused by an anatomic obstruction associated with aging, obesity, and weight gain, and there is no mechanism by which any mental health issue can cause this obstruction. The examiner went on to reference an article, stating that the conclusion that sleep apnea is associated with a higher prevalence of psychiatric comorbid condition does not suggest that psychiatric illness causes sleep apnea; instead the articles note those with psychiatric illness have an increased incidence of obstructive sleep apnea, but psychiatric disabilities are not causative of obstructive sleep apnea. Regarding whether the Veteran's PTSD aggravated the Veteran's obstructive sleep apnea, the examiner stated that as the PTSD was diagnosed over 38 years before his sleep apnea, there is no clinical relevance of his PTSD to the current sleep apnea. Additionally, the examiner again stated that a combination of weight and aging of more than 38 years are the etiology of the current diagnosis. While the examiner addressed the etiology of the Veteran's obstructive sleep apnea, he did not address any aggravation due to PTSD based on the Veteran's weight, which the examiner did relate to his obstructive sleep apnea diagnosis. As the August 2021 examiner concluded that PTSD does not create the obstructive mechanism that causes obstructive sleep apnea, but instead concluded that obesity and age are related to the development of obstructive sleep apnea, and did not fully address the impact of PTSD on the Veteran's weight, the medical opinion is given only some probative value. In support of his appeal, the Veteran submitted a November 2016 medical nexus opinion from a private physician. After a review of the Veteran's complete VA claims file, medical records, and interview of the Veteran, the private clinician opined, in pertinent part, that it is at least as likely as not that the Veteran's depressive disorder aided in the development of, and permanently aggravated his obstructive sleep apnea. The private clinical also referenced research, specifically research indicating that psychiatric disorders are commonly associated with obstructive sleep apnea. The private clinician also referenced an additional study that found that CPAP treatment for obstructive sleep apnea also decreased psychiatric symptoms, providing further evidence of the co-morbidity of both the disabilities. While not pristine, the November 2016 private opinion was based on a review of the complete file, an interview with the Veteran, and cites to evidence congruent with such. Accordingly, the Board concludes that the November 2016 private opinions must be afforded at least equal evidentiary value to the opinions against the claim. Bloom v. West, 12 Vet. App. 185, 187 (1999); Black v. Brown, 10 Vet. App. 297, 284 (1997). In sum, the Board finds that the evidence is, at least, in relative equipoise regarding the question of whether the Veteran's obstructive sleep apnea, is aggravated by his service-connected PTSD. In cases such as this, where the evidence pertinent to the crux of the Veteran's appeal is in relative equipoise (i.e., "nearly equal"), the benefit of the doubt must be conferred in the Veteran's favor. 38 U.S.C. § 5107(b); Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); see also 38 C.F.R. § 3.102. After doing so, the Board concludes that the nexus element, and thus, all elements, to establish secondary service connection are therefore met. Accordingly, the Board finds that entitlement to service connection for obstructive sleep apnea is warranted. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. W. Morgan, 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.