Citation Nr: 21073959 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 17-18 910 DATE: December 13, 2021 ORDER Entitlement to service connection for sleep apnea as secondary to service-connected post-traumatic stress disorder (PTSD) with an unspecified depressive disorder is granted. FINDING OF FACT The Veteran's obstructive sleep apnea is at least as likely as not aggravated by his service-connected PTSD with an unspecified depressive disorder. CONCLUSION OF LAW The criteria for service connection for sleep apnea as secondary to service-connected PTSD have been met. 38 U.S.C. §, 1110, 5103 (a), 5103A, 5107; 38 C.F.R. § 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January to April 1992, October 1994 to May 2005, June 2006 to April 2010, with active-duty training (ACDUTRA) from October 2014 to February 2015. He served in designated imminent danger pay area in the Persian Gulf region. This appeal comes to the Board of Veterans' Appeals (Board) from a June 2015 rating decision of the Department of Veterans' Affairs (VA) regional office (RO). The Board previously remanded the instant matter for additional development in August 2021. The Veteran requested a hearing before this Board in his April 2017 Substantive Appeal (on VA Form 9). A videoconference hearing before this Board consequently was scheduled for March 16, 2020. However, the Veteran did not appear for his hearing so was marked a "no show", and, to date, he has not provided any justifiable explanation or good cause for his absence or requested to have his hearing rescheduled. Therefore, the Board is proceeding with consideration of his claim since his hearing requested is deemed withdrawn Entitlement to service connection for sleep apnea as secondary to service-connected PTSD with an unspecified depressive disorder Service connection will be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; 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). For secondary service connection, the evidence must demonstrate an etiological relationship between the service-connected disability or disabilities and the condition said to be proximately due to the service-connected disability or disabilities. Buckley v. West, 12 Vet. App. 76, 84 (1998). The record must also contain competent evidence that the secondary disability was caused by the service-connected disability. See Wallin v. West, 11 Vet. App. 509 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). The Veteran contends his obstructive sleep apnea is secondary to his service-connected PTSD with unspecified depressive disorder. The Veteran was diagnosed with obstructive sleep apnea after a sleep study conducted in April 2015. This diagnosis was most recently confirmed in September 2021. The Veteran is currently rated at 50 percent for PTSD with unspecified depressive disorder, effective May 4, 2016. The Veteran was afforded a Compensation and Pension (C&P) examination in May 2015. The examiner opined the Veteran's sleep apnea was less likely than not related to his active service. The examiner explained that the Veteran's September 2009 and January 2010 post deployment physicals were negative as to any breathing issues, sleepiness or feeling tired. See, May 2015 C&P Examination. The examination did not address secondary service connection. In August 2021, the Board remanded the current issue for additional development. The remand noted that the May 2015 examination did not reflect any meaningful consideration of lay statements, including those the Veteran personally indicated as relevant. The examination also only discussed an opinion of a direct service connection. The Board remanded the case for an addendum opinion addressing, as relevant, secondary service connection and the Veteran's lay reports. Per the Board remand, the Veteran was afforded a C&P examination in September 2021. The examiner confirmed the Veteran's sleep apnea diagnosis. The examiner concluded the Veteran's sleep apnea was at least as likely as not aggravated beyond its natural progression by the service-connected PTSD with unspecified depressive disorder. The examiner explained that the Veteran is unable to regularly wear his sleep apnea mask, because he gets nervous and feels like he is suffocating and takes it off during sleep. As such he cannot be fully treated for his sleep apnea. The Board finds this opinion probative, as it provided a clear conclusion with supporting data, and reasoned medical explanations connecting the two. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While 38 C.F.R. § 3.310(b) contemplates a baseline to assess the severity of a nonservice-connected disability that is aggravated by a service-connected disability, the Board determines that this is more akin to a downstream rating aspect of the claim that should be addressed in the first instance by the RO following implementation of the instant decision. As the only competent probative opinion addressing secondary service connection weighs in favor of the claim, the Board finds that service connection for sleep apnea is warranted on a secondary basis. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Brewer, 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.