Citation Nr: 21006103 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 12-05 548 DATE: February 3, 2021 ORDER Entitlement to service connection for sleep apnea is granted. Entitlement to service connection for an acquired psychiatric disorder, diagnosed as major depression, secondary to service-connected degenerative arthritis of the spine on a causation basis, is granted. FINDINGS OF FACT 1. The Veteran’s obstructive sleep apnea had its onset in service. 2. The Veteran’s major depression is caused by service-connected degenerative arthritis of the spine. CONCLUSIONS OF LAW 1. The criteria for service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for acquired psychiatric disorder, diagnosed as major depression, secondary to service-connected degenerative arthritis of the spine have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran honorably served on active duty in the United States Army from May 1990 to August 1990 and from November 1990 to September 1991, to include service in Southwest Asia. In November 2015 the Board issued a decision that, inter alia, denied service connection for back disability and a sleep disability. The claim for entitlement to service connection for a psychiatric disorder was remanded. The Veteran appealed the Board’s decision to the U.S. Court of Appeals for Veterans’ Claims (Court). In September 2017, the Court granted a Joint Motion for Partial Remand (JMPR), vacating the Board’s November 2015 denied claims on appeal, and remanded the case to the Board for action consistent with the terms of the JMPR. In January 2018, January 2020, June 2020, and October 2020, the Board remanded the case for further evidentiary development. With respect to the Board’s October 2020 remand, the agency of original jurisdiction attempted to obtain records and the December 2020 opinion obtained was adequate to decide the claim. Thus, there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (only “substantial” rather than strict compliance with the Board’s remand directives is required under Stegall). While in remand status, in a December 2020 rating decision, the RO granted service connection for degenerative arthritis of the spine and assigned a 10 percent rating effective April 26, 2010. The grant of service connection for degenerative arthritis of the spine constitutes a full award of the benefits sought on appeal with respect to the issues. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of downstream elements such as the disability rating or effective date assigned). The record currently available to the Board contains no indication that the Veteran initiated an appeal with the initial rating or effective date assigned for degenerative arthritis of the spine. Thus, the matter is not in appellate status. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted 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). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). 1. Sleep Disability The Veteran contends that service connection for a sleep disability, to include as due to an undiagnosed illness due to service in Southwest Asia is warranted. In this case, the record demonstrates that the requirement for a current disability has been met. Specifically, VA clinical records dated from October 2018 to July 2020 indicates the Veteran was diagnosed with obstructive sleep apnea in September 2017. With respect to the in-service disease requirement, service treatment records (STRs) that in an April 1991 redeployment report, the Veteran reported frequent trouble sleeping. A March 2018 VA examination report shows the Veteran reported to onset of her sleep disorder symptoms in January 1990. She noted performing clinical nurse work in service and sitting in a chair she could fall asleep while talking to someone. The Veteran’s DD Form 214 shows that her military occupational specialty was medical specialist. Here, the Veteran has indicated that she had symptoms during service and her statements in this regard are competent, credible, and consistent with the circumstances of her service. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service records). This is sufficient to establish the second element of her service connection claim. The next issue is whether the third element of a nexus has been met. In March 2018, the Veteran was afforded a VA examination. The examiner opined that the Veteran’s sleep apnea was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner’s rationale was symptoms are subjective only, and the objective exam is normal. The examiner noted there was no evidence of a chronic condition. In a September 2018 VA addendum opinion, the examiner opined that the Veteran’s sleep disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that there is no objective evidence to support the claimed sleeping problem. The examiner further explained that while the Veteran did have complaints of trouble sleeping during military service, there is no evidence for a chronic recurrent sleep diagnosis during time in service, and “trouble sleeping” is nonspecific, not a diagnosis. The examiner noted there is then no documentation that the Veteran manifest clinically significant sleep complaints until years after time in service. Furthermore, the Veteran’s sleep difficulty (insomnia, daytime drowsiness), since 1996, has been well documented and treated as a component of Veteran’s extensive psychiatric conditions, including anxiety and history of polysubstance abuse, each of which contribute independently to sleep impairment. The March 2018 and September 2018 VA opinions that the Veteran’s sleep apnea is not related to service is of little, if any, probative value, because it relied on the absence of documentation in the STRs and did not consider the Veteran’s lay statements. Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that VA’s examiner’s opinion, which relied on the absence of contemporaneous medical evidence, failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran’s] disability such that his claim for service connection could be proven without contemporaneous medical evidence). The Veteran’s competent and credible lay statements indicate that she began experiencing sleep symptoms in service that later served as the basis for the diagnosis of sleep apnea, and that she continued to have those symptoms after service until the diagnosis. Significantly, “nothing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself.” Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Moreover, as explained in Maples v. Wilkie, No. 18-2016 (Vet. App. Feb. 11, 2019) (mem dec), sleep apnea is the type of disability as to which lay evidence can be sufficient to support a claim for service connection. See Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). For the reasons set forth above, the evidence is at least in equipoise as to whether the Veteran’s diagnosed obstructive sleep apnea had its onset in service. Thus, resolving reasonable doubt in the Veteran’s favor, service connection is warranted for obstructive sleep apnea. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Acquired Psychiatric Disorder The record on appeal reflects a diagnosis for an acquired psychiatric disability. Specifically, VA clinical records shows diagnoses of major depression, adjustment disorder, with mixed anxiety and depressed mood, and posttraumatic stress disorder (PTSD). Thus, a current disability requirement has been met. In the September 2018 VA addendum opinion, the examiner noted diagnoses of PTSD, mood disorder, generalized anxiety disorder, and major depression. The VA examiner opined that the Veteran’s currently diagnosed major depression appears to be related to her back and joint pain, which is tied in etiology to these pain and physical activity limiting disorders. The Board finds that the September 2018 VA opinion indicating that the Veteran’s major depression is caused by her service-connected degenerative arthritis of the spine, provide a sufficient basis to grant service connection for major depression. The examiner explained the reasons for her conclusion based on an accurate characterization of the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). There is no contrary medical opinion in the evidence of record. Thus, service connection for major depression, secondary to degenerative arthritis of the spine, on a causation basis, is warranted. As service connection is being granted on a secondary basis, consideration of other theories of entitlement is unnecessary. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Walker, 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.