Citation Nr: 21009118 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 19-18 429 DATE: February 19, 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 The probative evidence of record shows the Veteran’s sleep apnea is aggravated by his service-connected PTSD. CONCLUSION OF LAW The criteria for entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD), have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1967 to April 1970. Most recently, a January 2020 Board decision denied the Veteran’s claim for entitlement to service connection for sleep apnea. In September 2020, the Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court).  Pursuant to a Joint Motion for Remand (JMR), the Court vacated and remanded the January 2020 Board decision. The JMR found that the Board did not provide adequate reasons or bases. Specifically, the Court found that the September 2016 VA opinion that the Board relied on did not consider whether the Veteran’s condition was aggravated by his PTSD. The Court further found that the Board did not address a June 2016 positive private opinion. Service Connection 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). In order to establish service connection, the record must show 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). When considering such a claim for service connection, the Board must consider on a case-by-case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 Fed. Cir. 2007)).  The mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010).  Entitlement to Service Connection: Sleep Apnea The Veteran contends that his sleep apnea is related to his active duty service, to include as due to or aggravated by his service-connected PTSD. Service connection on a secondary basis essentially requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310. In June 2016, the Veteran provided a private opinion. The physician explained that the Veteran has been prescribed BIPAP and it is medically necessary due to his comorbidities, which include diabetes, depression, and PTSD. The examiner then opined that it is highly likely that the Veteran’s sleep apnea is exacerbated by his PTSD, which is contributing to his poor sleep pattern. VA treatment records show consistent notations of sleep disturbances related to his PTSD. His treatment records, including in December 2016, further show notations of poor sleep quality related to sleep apnea and poor compliance with his BIPAP secondary to his PTSD sleep disturbances. The Board acknowledges that a September 2016 VA examiner found that the Veteran’s sleep apnea was not related to his service-connected condition. However, the VA examiner provided no actual rationale as to why the Veteran’s sleep apnea was not related to his PTSD and did not provide an opinion at all on whether the Veteran’s PTSD aggravates his sleep apnea. Thus, the Board cannot put probative weight to the opinion. In applying the benefit of the doubt in favor of the Veteran, the Board finds that the evidence is in relative equipoise that the Veteran’s sleep apnea is aggravated by his service-connected PTSD.  Therefore, the Board finds June 2016 private opinion to be of significant probative value in determining the Veteran’s sleep apnea is aggravated by his service-connected PTSD.  The Board notes that the probative value of medical opinion evidence is based on the medical experts’ personal examination of the patient, their knowledge, and skill in analyzing the data, and their medical conclusion.  As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator.  Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).  Here, the private physician showed knowledge of the Veteran’s background and based the opinion on the Veteran’s lay contentions, the physician’s medical knowledge, review of his records, as well as examination of the Veteran. Additionally, the physician rationale provided for the opinion rendered is consistent with the medical evidence of record.  See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).  Therefore, the Board concludes that the probative evidence of record is for the claims and the benefit of the doubt doctrine has been applied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001).  JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Negron, 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.