Citation Nr: 21007893 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 18-53 947 DATE: February 11, 2021 ORDER Entitlement to service connection for a sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran’s sleep apnea is proximately related to his service-connected PTSD. CONCLUSION OF LAW Resolving doubt in the Veteran’s favor, the criteria for service connection for sleep apnea have been met. 38 U.S.C. § 1101, 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.102, 3.159, 3.303 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1964 to January 1967. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. This claim was previously before the Board in July 2019, at which time it was remanded for further development. On October 19, 2020, the Veteran’s representative requested a 90-day extension for the submission of additional evidence and argument in support of the Veteran’s appeal. The Board notes that additional evidence was not submitted as of January 18, 2021, the end of the extension period. An additional extension has also not been requested and the Board’s decision below is favorable to the Veteran. Therefore, the Board concludes that there is no prejudice with proceeding with its adjudication of this matter. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131 (2012). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). Generally, to establish service connection for a disability resulting from a disease or injury incurred in service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to service connection for a sleep apnea Pursuant to the July 2019 Board remand, the Veteran received a VA examination in December 2019 and the examiner noted a diagnosis of obstructive sleep apnea. The Veteran reported that his condition began in July 1966 and he described symptoms including years of snoring, restless sleep, excessive daytime sleepiness, and fatigue. He related it to two years of a horrible experiences while serving in a combat zone. Based on the results of the examination, the examiner concluded that the condition was less likely than not caused by service. Sleep apnea tended to be multifactorial in nature, including environmental factors, drug abuse, lifestyle, etc. Thus, there was no direct causality of PTSD causing or leading to sleep apnea. Therefore, the examiner concluded that PTSD was not a contributing factor or cause of sleep apnea or definitely associated with sleep apnea. The Board finds the December 2019 VA examiner’s ultimate opinion to be of diminished probative value. At the outset, the examiner offers a negative nexus opinion with regards to causation but does not opine whether the Veteran’s PTSD aggravated his sleep apnea. Furthermore, although the examiner uses the “less likely as not” standard, she appears to require a more definitive relationship, noting that there was “no direct causality” between PTSD and sleep apnea. The examiner notes that sleep apnea was multifactorial in nature and concedes that environmental factors could lead to the condition, which the Board finds could be reasonably interpreted to include the stress-related environment the Veteran was exposed to while serving in a combat zone during service. Therefore, reading the evidence in a light most favorable to the Veteran, the examiner appears to accept that PTSD could lead to PTSD, but discounts the finding because of the lack of a “direct causality.” Accordingly, the Board finds that the evidence is in equipoise as to whether the Veteran’s condition is related to his service-connected PTSD and that affording the Veteran the benefit of the doubt, service connection for sleep apnea is warranted. REASONS FOR REMAND Entitlement to a TDIU The Veteran has essentially contended that his service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment. However, since the RO will now assign a rating for sleep apnea based on the Board’s grant of service connection for this disorder, the Board finds that such action could impact the Veteran’s claim for TDIU. The Board will therefore defer any decision with respect to the TDIU claim until after the RO has assigned the rating and readjudicated the Veteran’s claim for TDIU, to include, if applicable, the issue of whether the Veteran is entitled to TDIU on an extraschedular basis. The matters are REMANDED for the following action: After assigning the rating for the Veteran’s newly service-connected sleep apnea, readjudicate the Veteran’s claim for TDIU, to include, if applicable, the issue of whether the Veteran is entitled to TDIU on an extraschedular basis. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Daniels, 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.