Citation Nr: 21014407 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 15-89 800A DATE: March 12, 2021 ORDER Entitlement to service connection for obstructive sleep apnea, to include as secondary to the service-connected disability of posttraumatic stress disorder (PTSD), is granted. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, the competent evidence of record is at least in equipoise as to whether the Veteran's current obstructive sleep apnea (OSA) is either caused or aggravated by his service-connected PTSD. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea, to include as secondary to service-connected PTSD, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.159, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1966 to March 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This matter has been remanded by Board on two prior occasions. First, in September 2018, for the RO to obtain treatment records related to the Veteran’s claim and for an addendum VA opinion. More recently, in May 2020, for a clarifying addendum opinion. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 C.F.R. §§ 3.309. In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau, supra. Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998). Competent medical evidence is the type of evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises and/or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale and a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). Competent lay evidence is any kind of evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Lastly, in order to deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for obstructive sleep apnea, to include as secondary to the service-connected disability of posttraumatic stress disorder (PTSD). The Veteran asserts that his obstructive sleep apnea is caused or aggravated by symptoms of his service-connected PTSD, for which he is currently service-connected at 50 percent. See, August 2015 VA 21-4138 Statement In Support of Claim. A condition precedent for establishing service connection is the presence of a current disability. As an initial matter, the Board notes that the Veteran was diagnosed with obstructive sleep disorder in May 2012 during private treatment based on sleep study. See, Medical Treatment Record-Non-Government Facility. Accordingly, the first element for establishing service connection for his sleep apnea has been met. With respect to the second element, the Board notes that the Veteran’s service-treatment records are silent for in-service complaints, treatment or a diagnosis of OSA; however, it is the Veteran’s assertion that his currently diagnosed obstructive sleep apnea disability is either caused or aggravated by symptoms of his service-connected PTSD. A December 2015 VA examiner opined that the Veteran’s OSA is less likely than not caused by his service-connected PTSD. As his rationale, the examiner lists a number of factors, including that the Veteran’s sleep apnea was diagnosed after service; that sleep apnea is a condition with a specific, established diagnostic criteria and is not diagnosed by the simple complaint of fatigue, tiredness, sleepiness, snoring or other nonspecific complaints, citing to risk factors such as a genetic predisposition, obesity, short large diameter neck, smoking, alcohol consumption and the use of sedatives and tranquilizers. The examiner concluded that there was no event or exposure during his military service that caused the Veteran’s sleep apnea diagnosis and that PTSD is not a cause of OSA. The Veteran subsequently submitted an opinion from his treating physician, Dr. B., who conversely opined that it is as likely as not (50 percent probability) that the Veteran’s PTSD contributed to or aggravated his sleep apnea condition. However, no rationale was provided. See, March 2016 Medical Treatment record – Non-Government Facility. However, to further support his claim, in a March 2016 correspondence, the Veteran submitted a medical article titled “Association of Psychiatric Disorders and Sleep Apnea in a Large Cohort,” from Sleep Research Society. See, Correspondence (March 2016). This was based on a study to determine whether psychiatric disorders are commonly associated with sleep apnea in Veterans Health Administration (VHA) beneficiaries. The findings of this study revealed a positive correlation. Because this study was submitted after the December 2015 VA examiner’s report, in September 2018, the Board remanded the Veteran’s claim for a VA addendum opinion to determine whether the Veteran’s OSA was aggravated by his service-connected PTSD, and for the examiner to specifically consider the medical treatise offered by the Veteran in support of his claim. An October 2019 addendum opinion found the Veteran’s OSA was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. Further, that the Veteran’s OSA was not proximately due to or aggravated beyond its natural progression by his service-connected PTSD, with the examiner reporting that his opinion was based on the review of the Veteran’s claim file and relevant literature. However, in his reference to “relevant literature,” the October 2019 VA medical addendum opinion did not reflect specific consideration of the journal article, “Association of Psychiatric Disorders and Sleep Apnea in a Large Cohort,” submitted by the Veteran, as the examiner was specifically directed to do in the Board’s September 2018 remand order. Consequently, the Board did not find this examiner’s opinion adequate; hence the basis for another VA opinion in the Board’s May 2020 remand. The Board also noted that the October 2019 VA medical addendum opinion provided little distinction between causation and aggravation (worsening of the Veteran’s OSA due to his PTSD) and, hence, it was unclear how and why the same rationale was applied to both the causation and aggravation elements of secondary service connection. The final VA opinion of record is a November 2020 VA addendum opinion, in response the Board’s May 2020 remand directives. The examiner opined as follows: DD214 shows active military service from 1966-1968. Polysomnogram on May 31, 2012 documents AHI index of 17.9 consistent with moderate obstructive sleep apnea. Report of medical history and exam on 2/6/1968 for separation did not reveal history or physical exam findings for ongoing acute or chronic treatment of sleep apnea condition. Medical record review did not reveal continuous ongoing medical treatment or aggravation of acute or chronic sleep apnea condition during time of discharge from active military service to present day. The sleep apnea condition occurred after discharge from military service. First, the Board finds that this examiner has also failed to provide the specifically requested response, a secondary service nexus opinion, as directed in the Board’s May 2020 remand order. Consequently, there has not been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions). Further, the Board’s May 2020 directive specifically requested that the subsequent opinion address the article (Association of Psychiatric Disorders and Sleep Apnea in a Large Cohort) submitted by the Veteran, stating that “[a]n adequate medical opinion must reflect consideration of the journal article.” This article was not only NOT referenced, but even more problematic is that the examiner’s opinion was for direct service connection only. Consequently, based on the facts of this case, the Board finds that this May 2020 VA examiner’s opinion is of no probative value. In addition, for the reasons previously discussed, the other two prior VA examiners opinions (December 2015 and October 2019) of record are also inadequate. With regards to the positive nexus opinion of record provided by the Veteran’s treating physician Dr. B., even though it is not supported by a corresponding rationale, the Board finds that the referenced article submitted by the Veteran (March 2016) showing a positive correlation between psychiatric disorders and sleep disturbances (though not specific to the Veteran’s case), bolsters Dr. B’s opinion that the Veteran’s PTSD contributed to or aggravated his sleep apnea condition. Further, although these types of studies referenced in this article do not by themselves provide a nexus between the Veteran’s PTSD and sleep apnea, the Board finds that they show a strong correlation between PTSD and sleep apnea and lends significant support that PTSD or psychological disorders can aggravate sleep apnea. This is because the Veteran does not have to establish a “definitive” association between his PTSD and sleep apnea; rather, he merely has to show that there is at least as likely as not a causal relationship, which the Board finds has been shown in this case. Moreover, given that Dr. B. is the Veteran’s treating physician (who diagnosed the Veteran with OSA, following a sleep study) and is familiar with his medical history, including symptoms and complaints of both his PTSD and sleep apnea disabilities, the Board finds that it has a reasonable basis to assign her positive opinion some degree of probative weight, and it has done so. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). In short, there are three VA opinions of record which have all been deemed inadequate for various reasons by the Board, and there is one positive nexus opinion submitted by the Veteran’s treating physician Dr. B., associating his OSA to his service-connected PTSD, which is bolstered by supportive medical literature submitted by the Veteran. Given the totality of the evidence of record, the Board finds that the competent evidence of record is at least in equipoise as to whether the Veteran’s obstructive sleep apnea is caused or aggravated by his service-connected PTSD. Accordingly, under these circumstances, and in giving the Veteran the benefit of the doubt, the Board finds that service connection for his obstructive sleep apnea, to include as secondary to his service-connected PTSD, is warranted. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.B. King, 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.