Citation Nr: 21022581 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 13-28 765A DATE: April 16, 2021 ORDER Service connection for obstructive sleep apnea is granted. FINDING OF FACT The Veteran’s obstructive sleep apnea is aggravated beyond its natural progression by his service-connected posttraumatic stress disorder (PTSD) with major depressive disorder, anxious distress, and anxiety. CONCLUSION OF LAW The criteria are met to establish service connection for obstructive sleep apnea as secondary to the Veteran’s service-connected psychiatric disabilities. 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 Navy from July 1965 to January 1969. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) in January 2010. Service connection for obstructive sleep apnea is granted. VA and private treatment records show the Veteran has a current disability of sleep apnea, and the November 2020 VA examiner opined that this Veteran’s sleep apnea is at least as likely as not aggravated beyond its natural progress by his service-connected PTSD, depression, and anxiety. The examiner was not able to determine a baseline level of severity of sleep apnea occurring before or as early as possible following aggravation based upon the available medical evidence in this case. VA opinion, November 2020. The regulation governing service connection for disabilities aggravated by a service-connected disease or injury indicates that VA will not concede that a nonservice-connected disease was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease is established for comparison to the current level of severity. 38 C.F.R. § 3.310(b). However, the sentence immediately prior in the same regulatory section states, “Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service-connected.” Id. (emphasis added). The November 2020 VA opinion states that PTSD aggravates the Veteran’s sleep apnea because it interferes with his ability to fall asleep which limits the effectiveness of the continuous positive airway pressure (CPAP) machine that the Veteran uses to treat his sleep apnea, and it is therefore at least as likely as not that the Veteran’s service-connected psychiatric disabilities aggravate his sleep apnea beyond its natural progression. The examiner is a medical doctor and based upon his experience, training, and education is competent to reach this determination. The Board also finds it to be probative medical evidence in support of the Veteran’s claim. The Board is therefore not conceding that a nonservice-connected disease was aggravated by a service-connected disease, but rather is applying the first sentence of 38 C.F.R. § 3.310(b) in conjunction with the examiner’s probative opinion to find that although the extent of an increase in severity over baseline is not clearly identified, some degree of increase in severity over baseline can be inferred from the examiner’s positive opinion regarding aggravation. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability (or in this case, the degree of severity of sleep apnea present prior to aggravation) must be resolved in favor of the claimant. 38 C.F.R. § 4.3; see also 38 C.F.R. § 3.2. On this basis, resolving reasonable doubt in favor of the Veteran, service connection for sleep apnea is granted. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. McDonald, 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.