Citation Nr: 21016139 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 17-04 710A DATE: March 19, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected posttraumatic stress disorder and major depressive disorder (PTSD), is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, it is at least as likely as not his OSA is caused by or related to his service-connected PTSD. CONCLUSION OF LAW The criteria for secondary service connection for OSA, as proximately due to service-connected PTSD, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1953 to March 1974, including in the Republic of Vietnam. The Department of Veterans Affairs (VA) is grateful to the Veteran for his many years of honorable service. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). The appeal was remanded by the Board in September 2018 and February for further development. It now returns for appellate review. The September 2018 Board decision granted service connection for major depressive disorder. By a December 2018 rating decision, the AOJ implemented the Board decision and assigned a 30 percent rating for major depressive disorder effective April 29, 2014, the date of receipt of the Veteran’s claim for service connection. In a March 2019 VA Form 21-0958, Notice of Disagreement, the Veteran disagreed with the 30 percent rating and claimed entitlement to a 100 percent rating or a total disability rating based on unemployability due to service-connected disability (TDIU); by a March 2020 rating decision, the disorder was recharacterized as PTSD and major depressive disorder and an increased staged rating of 50 percent was assigned from November 9, 2019, the date of VA examination showing increased disability (a subsequent August 2020 rating decision also granted TDIU from November 9, 2019); the Veteran was provided a Statement of the Case at the time of the March 2020 rating decision and, in May 2020, VA received his timely substantive appeal (VA Form 9, Appeal to Board of Veterans’ Appeals). This matter has been certified to the Board by the AOJ; however, in February 2021 correspondence, the Veteran’s attorney indicated that additional medical records were being “mailed (on a CD-ROM)” and requested adjudication of the Veteran’s appeal be deferred until this additional evidence is associated with his claims file. Thus, the PTSD increased rating claim, including entitlement to TDIU prior to November 9, 2019, will be the subject of a separate Board decision, if otherwise in order, and will not be adjudicated herein. Service Connection The Veteran seeks service connection for a sleep disorder, diagnosed as OSA, secondary to his service-connected PTSD. Because the Board is granting this claim on a secondary basis, it will not discuss service connection on a direct incurrence basis in this decision. Service connection may be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Briefly, the legal requirements for a successful secondary service connection claim are: (1) evidence of a current disability for which secondary service connection is sought; (2) a disability which is service connected; and (3) competent evidence of a nexus between the two. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Importantly, it is noted that the Veteran is service connected for PTSD. See March 2020 rating decision which recharacterized the Veteran’s service-connected psychiatric disability as PTSD and major depressive disorder. It is also not in dispute that he has been diagnosed with, and receives treatment for, OSA. See e.g., February 2012 Polysomnogram Report, October 2019 VA sleep apnea examination report and VA treatment records noting the diagnosis of OSA and treatment with CPAP (continuous positive airway pressure) device. What remains necessary to substantiate his secondary service connection theory of entitlement in this claim is evidence that the PTSD caused or aggravated the sleep apnea. Regarding evidence linking the Veteran’s OSA to his service-connected PTSD, an August 2018 private medical report, based on interview of the Veteran and review of his medical history and relevant medical literature, includes the opinion that “the central nervous system changes occurring from PTSD are causally linked to obstructive sleep apnea.” The August private examiner also found that, based on his review of the claims file and medical literature, “it is at least as likely as not that the veteran’s OSA is causally related to his service-connected PTSD.” Similarly, in a November 2020 report, the same physician opined that the Veteran’s “OSA is likely clinically correlated with his concomitant diagnosis of PTSD.” The examiner explained that “the pathophysiologic changes occurring from PTSD are clinically correlated to obstructive sleep apnea. Therefore, it is at least as likely as not [the Veteran’s] obstructive sleep apnea is clinically correlated to his severe PTSD and not merely explainable by structural changes in his oropharynx, becoming aged, or obesity, as previously noted by the VA examiners of record.” In contrast, an October 2019 VA sleep apnea examination report includes the opinion that it is less likely than not that the Veteran’s sleep apnea is proximately due to or the result of his service-connected depression because “sleep apnea is a disorder of the muscles of the oropharynx that close during sleep … it is not related to psychiatric problems such as depression which commonly causes insomnia or problems getting to sleep.” In February 2020, a VA clinician opined that the Veteran’s OSA is less likely than not aggravated beyond natural progression by service connected disabilities because “the medical treatment records [do] not show the OSA has worsened beyond natural progression.” The examiner further noted that records show actual improvement of OSA when Veteran is compliant with his CPAP.” Finally, in a July 2020 addendum opinion, a VA clinician opined it is less likely than not that the Veteran’s OSA is caused by or aggravated beyond its normal course by PTSD. The examiner explained that “obstructive sleep apnea is caused by soft tissue structures of the upper airway blocking the air passages. This can result from bony abnormalities resulting in smaller than normal air passages (e.g. micorgnathia), or from soft tissues that are larger than normal (e.g. patients with Down’s syndrome have larger tongues than other people, patients with enlarged adenoids, and excess submucosal fatty tissue seen in obese people). PTSD causes none of these abnormalities.” In cases where there are two different medical opinions, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value. See Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. (1991). Furthermore, VA has a duty to uphold the benefit of the doubt rule and, in cases where the evidence is in relative equipoise, service connection must be granted. The August 2018 and November 2020 private medical opinions in support of the Veteran’s claim and the October 2019, February 2020 and July 2020 opinions (combined) against his claim each include rationale for the conclusions reached and reflect a review of the claims file and consideration of the Veteran’s history and relevant medical literature. Thus, they are entitled to equal weight and probative value. As the evidence for and the evidence against the Veteran’s claim is in relative equipoise, the Board affords the Veteran the benefit of reasonable doubt, as required, and finds there is competent evidence of record establishing a link between the his OSA and his service-connected PTSD. Accordingly, the requirements for establishing secondary service connection for OSA, as proximately due to service-connected PTSD, have been met; service connection for OSA is warranted. Further, as the evidence of record supports service connection for OSA as proximately due to service-connected PTSD, discussion as to aggravation beyond natural progression by service-connected disability, a lesser benefit, is rendered moot. M. ESPINOZA Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kshama Hughes 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.