Citation Nr: 21071196 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 14-37 011 DATE: November 30, 2021 ORDER Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, the evidence of record favors a finding that the Veteran has obstructive sleep apnea that is related to service to include as secondary to his service-connected PTSD disability. CONCLUSION OF LAW The criteria for entitlement to service connection for an obstructive sleep apnea disability are met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1984 to June 1984, June 2005 to September 2005, November 2006 to April 2008, and June 2008 to June 2009. This matter is on appeal to the Board of Veterans' Appeals (the Board) from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2018, the Veteran testified in a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the evidence of record. The Board remanded the Veteran's claims for additional development in April 2018. In January 2020, the Board denied entitlement to service connection for OSA, to include as secondary to service-connected PTSD. The Veteran subsequently appealed ot the United States Court of Appeals for Veterans Claims (the Court). In a December 2020 order, the Court granted the parties' Joint Motion for Remand (JMR), vacating the Board's January 2020 denial of service connection for OSA, and remanded to the Board for readjudication consistent with the JMR. In June 2021 the Board again remanded this issue for additional development. 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 military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service- connected disease or injury. Such permits a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation to a nonservice- connected disability by a service- connected disability. Id. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310(b). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Factual Background and Analysis The Veteran contends that his sleep apnea had its initial onset during his period of active duty service. Alternatively, he also asserts that his sleep apnea is secondary to his service-connected PTSD. Review of the Veteran's service treatment records are silent for complaints, treatments and diagnoses for sleep apnea. At the January 1984 enlistment examination, no sleep issues were reported or identified by the Veteran. At the May 1985 annual physical, no sleep issues were reported. The Veteran signed a March 1986 statement asserting no injury illness or chronic disease within the previous 12 months. A March 1988 and April 1989 annual physical found no reported sleep issues or sleep apnea. A June 2007 routine physical found the Veteran's review of systems to report no generalized pain or feelings of fatigue. In March 2010 the Veteran reported no sleep complaints. In July 2011 the Veteran filed a claim for a sleep disorder and indicated treatment in Iraq. In an October 2011 statement in support of a claim for PTSD, the Veteran reported a sleeping disorder, sleep apathy and difficulty sleeping; he described that he tended to fall asleep while operating vehicles and performing combat missions. In an October 2011 private medical examination for PTSD, the Veteran complained of difficulty falling asleep and poor sleep quality; he described tossing and turning and recurring nightmares that wake him up. In an October 2011 primary care report, the Veteran reported a "documented history of multiple problems in the military" with episodic symptoms. The treating physician gave an assessment of several diagnoses including PTSD and "right foot surgery with residual paresthesias and pain and sleep disorder" and remarked that "all of these military related." In a December 2012 rating decision, the Veteran was granted service-connection PTSD and evaluated based upon symptoms including flattened affect, anxiety and chronic sleep impairment. In a December 2013 physical medicine rehabilitation consultation, the Veteran reported a sleep history describing difficulty falling asleep and waking up 2 to 3 times a night due to nightmares or having to use the bathroom. When asked to provide a history of sleep apnea, the Veteran was unclear and reported on a few occasions he has woken up out of breath. The Veteran also reported excessive daytime sleepiness and periodically falling asleep while driving. The Veteran currently reported sleep-snoring and waking up gasping for air. In a separate December 2013 medical note, the Veteran reported mild fatigue and loss of energy and severe difficulty falling or staying asleep. In January and July 2014 medical records, the Veteran reported that he was subjected to nearby explosions in 2007 and 2009 resulting in loss of consciousness for several minutes. Afterwards the Veteran reported symptoms including difficulty falling asleep. The Veteran was afforded a July 2014 sleep study and given an impression of mild OSA, more severe while supine. In January 2015 the Veteran was noted to have difficulties using a CPAP machine and was considering sleep apnea surgery. In an October 2014 statement, the Veteran stated that he developed sleep apnea while in the military with symptoms of loud snoring and fatigue during the day. The Veteran stated that due to the "newness" of the condition, he did not seek treatment. The Veteran further stated that the "military teaches us to be strong and not to seek treatment for minor ailments, certainly not for snoring." In a statement received January 2015 from the Veteran's wife, she stated that she first met the Veteran in May 1985 and observed "drastic sleeping behavior during his rest and relaxation leave from Iraq." The Veteran's wife stated that if the Veteran is sound asleep and starts to snore, he will "snore or wake up quickly and wake himself up." The Veteran's wife notes the Veteran constantly states that he is tired and when he sits, he "will immediately shutdown"; she expressed concern for the Veteran falling asleep on trips and notes that he has to pull over at travel stops to take naps during trips. In a February 2015 PTSD review examination, the Veteran was noted with diagnoses of PTSD and sleep apnea with symptoms of chronic sleep impairment, but no opinion was given regarding the Veteran's sleep apnea in relation to his PTSD. In a May 2015 psychology note the Veteran was given an impression for obstructive sleep apnea and for "insomnia secondary to PTSD". In a September 2015 traumatic brain injury (TBI) examination the Veteran claimed he had sleep apnea. The examiner did not find any residuals or symptoms attributable to TBI. In a November 2015 statement from the Veteran's wife, she stated that she noticed changes in the Veteran's behavior following his deployment to Iraq. The Veteran's wife stated that she observed the Veteran experiencing and displaying symptoms consistent with sleep apnea such as moving repeatedly in bed, signs of restlessness, awaking often at night, difficulty falling asleep, and appearing exhausted during the day. The Veteran's wife observed the Veteran falling asleep quickly in sedentary positions such as when sitting for long periods, watching movies, attending classes or doing any activity that did not require active movement. In a December 2015 VA examination for PTSD, the Veteran reported recurrent recall, anxiety and insomnia as symptoms of his PTSD. The Veteran reported that in 2008 he was irritable, with sleeping problems and nightmares, and a sleep lab diagnosed him with sleep apnea. The examiner found symptoms of depressed mood, anxiety, suspiciousness and chronic sleep impairment. The examiner did not give any opinion whether the Veteran's sleep apnea was related to his PTSD. In a submitted February 2017 private PTSD examination, the private examiner gave diagnoses of PTSD with delayed expression and recurrent major depression. The examiner also gave an axis III diagnosis for sleep apnea but gave no opinion or rationale as to whether the PTSD caused or aggravated the Veteran's sleep apnea, only stating "they are related." The Veteran was afforded a November 2017 VA examination for sleep apnea. The VA examiner gave a diagnosis of obstructive sleep apnea. The examiner found it was less likely than not the Veteran's sleep apnea was incurred in or caused by the claimed in-service injury, event or illness. The examiner opined that sleep apnea is a specific medical illness with a clear etiology and diagnostic process and did not represent an undiagnosed or unexplained condition. The examiner did not opine or address whether the Veteran's service-connected PTSD caused or aggravated the Veteran's sleep apnea. In a submitted December 2017 private examination for PTSD, the private examiner gave diagnoses for PTSD, TBI, unspecified mood disorder, and axis III diagnoses for sleep apnea and high cholesterol. The examiner found symptoms to include chronic sleep impairment and stated that it was not possible to differentiate symptoms attributable to diagnoses, only stating "they are related." The examiner did not give an opinion whether the Veteran's PTSD caused or aggravated his sleep apnea. At the Veteran's February 2018 hearing, the Veteran testified that he first noticed sleep issues in 2007 where his duties as convoy driver required him to work 20 hours a day for four to five missions per week. The Veteran stated that he noticed that he would always feel very exhausted and drowsy at times during the day and especially at night, only getting three to four hours of sleep per night. The Veteran stated that he and other drivers had a tendency to fall asleep, become very drowsy and have trouble staying awake. The Veteran also testified that he was stationed near a helipad and constant noise including incoming aircraft, helicopters, Humvees and explosions during the night resulted in the Veteran getting very little sleep. The Veteran stated that at times he would wake up from sleep feeling like he stopped breathing or was unable to breathe, believing at the time it was caused by exhaustion and sleep-deprivation. The Veteran stated that he never got medical treatment because he was located in a combat zone and there was no medical treatment in the field. The Veteran's wife testified that after the Veteran's deployment, she needed to keep an eye on him to make sure he was not dozing off on the road. The Veteran then read statements regarding research that revealed a correlation between PTSD and sleep apnea. The Veteran further stated that his sleep deprivation, lack of sleep, physical condition and psychological stress from his deployment had some impact on getting sleep apnea and asserted that his sleep apnea was incurred as secondary to his service-connected PTSD. In November 2018 sleep study, the attending physician noted the test result showed the Veteran continued to have mild obstructive sleep apnea with use of his assistive appliance and found that his sleep apnea had improved overall. The Veteran was afforded an October 2019 VA examination for his sleep apnea. The examiner gave a diagnosis for obstructive sleep apnea. The Veteran reported that when he was deployed in Iraq from March 2007 to March 2008 he was assigned as a convoy driver working 4 to 5 missions a week for 20 to 22 hours a day. The Veteran stated that he always felt drowsy, did not sleep well at night due to noise, and had difficulty staying awake when driving. The Veteran stated that he was unable to go to a clinic because there was no medical care and did not see medical personnel for sleep problems when he returned from Iraq. The Veteran stated that his sleep problems got worse when he got back with symptoms of trouble falling asleep, staying asleep, being jumpy during sleep and feeling unrefreshed. The examiner found that it was less likely than not that the Veteran's sleep apnea was incurred in or caused by an in-service injury, event or illness as the examiner noted that annual physicals held in May 1985, April 1989, March 1988, and a September 2008 5-year physical reported no issues with frequent troubles sleeping. The examiner also reported that there were no visits in the Veteran's service treatment records relating to sleep complaints. The examiner noted the October 2011 record stating the Veteran' right foot surgery with residual paresthesias and sleep disorder as "all of these military related", and December 2013 medical evaluation for TBI documenting history of sleep apnea symptoms and requesting a sleep study. The examiner also referenced the Veteran's prior reports of sleep problems during deployment including long work hours, few hours of sleep and frequent noise-disruptions interrupting the Veteran's sleep. The examiner noted that inadequate and interrupted sleep is a known cause of fatigue and stated that the Veteran's described circumstances during his deployment could certainly cause the reported sleep symptoms and fatigue during deployment. There were no visits following the Veteran's deployment for sleep related complaints and the first documentation of sleep related complaints in the Veteran's medical record was in December 2013 resulting in the July 2014 sleep study diagnosing sleep apnea. The examiner also noted that a sleep study is necessary to make a diagnosis of sleep apnea and found that there was no established nexus to the Veteran's service as the sleep study performed in 2014 occurred more than 5 years following separation from service. The examiner did not find that any sleep study was performed during active duty service and it opined that it was not possible to determine the onset of the Veteran's obstructive sleep apnea without resorting to mere speculation. The examiner additionally found that it was less likely than not that the Veteran's sleep apnea was proximately due to or the result of the Veteran's service-connected condition. While the examiner did note that the prevalence of sleep apnea is increased in certain medical conditions including PTSD, the examiner opined that while PTSD and OSA may co-occur, "this does not mean that there is a causal effect PTSD causing [the Veteran's] sleep apnea." The examiner noted the Veteran provided testimony referring to a study indicating a high percentage of Iraq and Afghanistan Veteran's screening for high risk of OSA. The examiner noted the authors of the study evaluated risk factors of OSA and self-reported PTSD symptoms to indicate the Iraq and Afghanistan Veteran's screening at a higher rate of OSA compared to the overall community. However, the examiner also noted that the same authors commented that further studies were required to determine the temporal relationship and interplay between PTSD and OSA and did not establish a cause and effect relation between the conditions. The examiner cited a separate study noting that body mass index (BMI) significantly predicted the occurrence of OSA and that the authors found that "the known risk factors of increased age and BMI, not PTSD, are associated with the diagnosis of OSA supports that the co-occurrence of PTSD and OSA is an epiphenomenon. Sleep disturbances are inherent to PTSD, and OSA is a relatively common disorder in this population." The examiner concluded that while the Veteran's PTSD and OSA conditions co-occur, a causal relation was not established. The examiner finally opined that it was less likely as not that the Veteran's OSA was aggravated beyond their natural progression by the Veteran's service-connected PTSD as the baseline level severity of the Veteran's OSA was mild sleep apnea diagnosed in July 2014. The examiner noted that the Veteran had a follow up polysomnogram in November 2018 which showed results of mild obstructive sleep apnea and concluded there was insufficient medical evidence to indicate the Veteran's OSA condition had progressed in severity. Notably, the Court in its December 2020 JMR found that the October 2019 VA examiner failed to provide sufficient information regarding why an opinion could not be provided without resorting to speculation. The Court noted that it was unclear if the examiner's inability to render an opinion reflected a limitation in the medical community. The Court also found that the October 2019 VA examiner's rationale relied on a lack of evidence to form an opinion as the examiner did not specifically address the contentions of both the Veteran and his wife. Notably, the Veteran's wife provided a statement which noted drastic sleeping behavior during rest and relaxation leave from Iraq while in his July 2013 Notice of Disagreement (NOD), the Veteran noted reporting fatigue to his supervisor while performing duties during deployment in Iraq in support of OEF but that he never sought medical treatment due to the wartime environment. The Veteran's known symptoms were loud snoring and daytime fatigue. However, he indicated that the military taught him to not seek out treatment for minor ailments and certainly to not seek treatment for snoring. Per the June 2021 Board remand instructions, the VA examiner who performed the October 2019 VA examination provided an addendum opinion in August 2021. The examiner opined that it was less likely than not that the Veteran's sleep apnea was incurred in or caused by the claimed event, injury or illness. The examiner noted that the diagnosis of sleep apnea cannot be made without a sleep study as the criteria for the diagnosis are based on apnea/hypopnea index that is derived from the sleep study and the symptoms. Not all patients who have snoring and interrupted sleep are diagnosed with sleep apnea as these symptoms can occur with other due to other sleep disorders and medical conditions. The Veteran reported long working hours and fatigue during deployment but following deployment his medical evaluations noted "good energy" in 2009 and in 2012 there were no reports of fatigue. A December 2013 treatment report noted possible complaints of sleep apnea and in July 2014 he was diagnosed with sleep apnea after a sleep study. As a sleep study was not performed for 5 years following the final period of active duty, based on available evidence it was not possible to say that obstructive sleep apnea was present during service as there was no medical documentation during active duty related to sleep complaints and the lay evidence was not sufficient to make a diagnosis of sleep apnea. The examiner also opined that it was less likely than not that the Veteran's sleep apnea was caused or aggravated by the Veteran's service-connected PTSD. The examiner noted that the mechanisms for the interruption of sleep in sleep apnea and PTSD was different. The examiner found that while obstructive sleep apnea and PTSD may co-occur, a cause and effect relationship between the 2 disorders has not been made and there was no biologic link to date. The examiner also noted that there was insufficient evidence to indicate that the Veteran's sleep apnea had been aggravated or progressed in severity. The examiner noted that she reviewed the Veteran's claims file to include the statements of the Veteran and his wife. After resolving all reasonable doubt in favor of the Veteran, the Board finds service connection for a sleep apnea disability is warranted as there is at least an approximate balance of evidence as to whether the Veteran has a current sleep apnea disability that was due to service or secondary to his service-connected PTSD disability. As there is a current diagnosis of sleep apnea, the first element of service connection is satisfied. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). The Board notes that there are conflicting medical opinions of record addressing the possibility of a relationship between the Veteran's current sleep apnea disability and his service to include as secondary to a service-connected disability. Notably, in an October 2011 primary care report, the treating physician gave an assessment of several diagnoses including PTSD and "right foot surgery with residual paresthesias and pain and sleep disorder" and remarked that "all of these military related." Additionally, on a February 2017 private PTSD examination, the examiner provided diagnoses of sleep apnea and PTSD and stated that "they are related" while a December 2017 private examiner noted that the Veteran had PTSD, TBI, unspecified mood disorder and sleep apnea which were related as it was not possible to differentiate symptoms attributable to the diagnoses. Conversely, the October 2019 VA examiner on the October 2019 VA examination report and July 2021 addendum opinion opined that it was less likely than not that the Veteran's sleep apnea disability was incurred in or caused by the claimed injury, event or illness and that it was less likely than not that the Veteran's sleep apnea was caused or aggravated by the Veteran's service-connected PTSD. Regarding the VA examiner's October 2019 opinion, the Board notes that the Court in its December 2020 Joint Motion found that the examiner failed to provide sufficient information regarding why an opinion could not be provided without resorting to speculation while also relying on a lack of evidence to form an opinion. The Court also determined that the examiner did not specifically address the contentions of both the Veteran and his wife. After the December 2020 JMR and June 2021 Board remand, the October 2019 VA examiner in her July 2021 addendum opinion indicated that she reviewed the lay statements of the Veteran and his wife. She also determined that it was not possible to say that obstructive sleep apnea was present during service as a sleep study was not performed for 5 years following the final period of active duty and there was no medical documentation during active duty related to sleep complaints. The examiner also found that lay evidence was not sufficient to make a diagnosis of sleep apnea. The Board again notes that the December 2020 Joint Motion found that VA examiner in the October 2019 opinion failed to provide sufficient information regarding why an opinion could not be provided without resorting to speculation and also did not specifically address the contentions of both the Veteran and his wife. While the VA examiner in the July 2021 opinion indicated that she reviewed the lay statements of the Veteran and his wife and that it was not possible to say that obstructive sleep apnea was present during service, the examiner again did not specifically address the contentions of both the Veteran and his wife who again consistently and credibly provided lay statements regarding the Veteran's sleep difficulty in service. Again, the Veteran's wife provided a statement which noted drastic sleeping behavior during rest and relaxation leave from Iraq while the Veteran indicated that he reported having fatigue to his supervisor while performing duties during deployment in Iraq in support of OEF but that he never sought medical treatment due to the wartime environment. In February 2018, the Veteran also testified during his deployment he woke up with the sensation he had stopped breathing while sleeping. As a result, the Board finds that there is an approximate balance of positive and negative evidence regarding the question of whether the Veteran has a current sleep apnea disability that was related to service to include being secondary to his service-connected PTSD disability. Additionally, a remand for a new VA examination is not necessary because the evidence of record is sufficient to grant the Veteran's claim, and a remand would only serve to unnecessarily delay final adjudication of the claim. In sum, for the reasons and bases discussed above, the Board has resolved doubt in favor of the Veteran, and service connection for a sleep apnea disability is granted. See 38 U.S.C. § 5107(b). MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James A. DeFrank, 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.