Citation Nr: 21024537 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 16-49 925 DATE: April 23, 2021 ORDER Entitlement to service connection for obstructive sleep apnea as secondary to service connected posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT Resolving doubt in favor of the Veteran, the probative evidence of record demonstrates that it is at least as likely as not that the Veteran’s obstructive sleep apnea was caused or aggravated by her service connected PTSD. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for obstructive sleep apnea as secondary to service connected PTSD, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from March 1998 to August 2006. The Veteran’s awards and decorations for her service include a Combat Action Ribbon, among others. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) Roanoke, Virginia. In January 2020, the Board issued a decision denying entitlement to obstructive sleep apnea. The Veteran subsequently appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2020 Order, the Court granted a Joint Motion for Partial Remand of the parties and remanded the case to the Board for action consistent with the Joint Motion. Service Connection – Obstructive Sleep Apnea The Veteran seeks to establish service connection for obstructive sleep apnea secondary to her service connected PTSD. Specifically, the Veteran’s representative asserts that the Veteran’s obstructive sleep apnea is secondary to her PTSD; that her sleep apnea symptoms, to include fatigue, had their onset during service and continued since; and that the December 2014 VA examination report of record is inadequate to decide the claim. See Correspondence, December 23, 2020; see VA Form 646, Statement of Accredited Representative in Appealed Case, March 19, 2019. Additionally, the Veteran asserts that her symptoms began during active service after a bombing incident in 2000, and that the December 2014 VA examiner failed to adequately address such incident. See Notice of Disagreement (NOD), December 22, 2015; see also VA Form 9, October 3, 2016. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to establish service connection a veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a 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) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen, except that it will not concede aggravation unless a baseline for the claimed disability can be established with evidence created prior to any aggravation. 38 C.F.R. § 3.310(b). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). However, for the purpose of evaluating lay evidence, to include a veteran’s statements about his health conditions, competent evidence is “limited to that which the witness has actually observed and is within the realm of his personal knowledge.” Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). For example, although a lay person is competent to report observable symptomatology of an injury or illness (such as pain or the visible flatness of his feet), a lay person is “not competent to opine as to medical etiology or render medical opinions.” Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Lay evidence may also include the Veteran’s reported history at the time of medical examination or treatment. The Veteran’s report of injury, history of symptoms, history of treatments, and current complaints made to the doctor are lay evidence. Such history and complaints are not transformed into medical evidence just because the Veteran tells them to a doctor who writes it down. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (ruling that “a bare transcription of a lay history is not transformed into ‘competent medical evidence’ merely because the transcriber happens to be a medical professional....”); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding a lay person is competent to report a contemporaneous medical diagnosis). In rendering a decision on appeal, the Board must analyze the competency, credibility, and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Buchanan v. Nicholson, 451 F.3d 1331, 133537 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board notes the Veteran’s service treatment records are silent for complaints of, treatment for, or diagnoses of a sleep related disorder. However, service treatment records indicate the Veteran complained of difficulty sleeping, trouble breathing, anxiety, and frequent trouble sleeping. See e.g. Service Treatment Records, September 22, 1997, October 18, 2000, March 19, 2001, and July 25, 2006. Post service treatment records confirm diagnosis of, and treatment for, obstructive sleep apnea. Private treatment record, August 15, 2014. Notably, a September 2007 VA treatment record indicates the Veteran had sleep disturbance related to her mental health treatment, to include the inability to fall and stay asleep. See VA treatment record, September 25, 2007. Additionally, service connection is in effect for PTSD with alcohol abuse and sleep disturbance. In support of her claim, the Veteran submitted two statements from her husband and friend in March 2019. At those times, her husband and friend reported the Veteran snored very loud at night, stopped breathing at night, used a continuous positive airway pressure (CPAP) machine, and experienced severe headaches, lack of concentration, and mood swings. See Correspondence, March 22, 2019. Turning to the question of whether there is an etiological relationship between the Veteran’s obstructive sleep apnea and service or her service connected PTSD, the Board notes that the record contains two opinions which must be considered and weighed. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (stating that the probative value of medical evidence is based on the physician’s knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). When faced with conflicting medical opinions, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board will consider each of these opinions below. At a VA examination in December 2014, the examiner opined the Veteran’s obstructive sleep apnea was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In this regard, the examiner noted that due to the absence of documented symptoms related to obstructive sleep apnea during military service, it is less likely than not that her current diagnosis of obstructive sleep apnea was related to onset during military service. However, this opinion did not address the Veteran’s contention regarding secondary service connection. To that extent, this opinion is incomplete. A December 2020 opinion from C.M-C., DNP/PMHNP-BC, who is a VA provider, was submitted. This provider opined that the Veteran’s obstructive sleep apnea was at least as likely as not due to her service connected PTSD. The provider noted that the Veteran did not have other risk factors for obstructive sleep apnea such as, smoking or obesity; and did not experience major sleeping difficulties prior to the bombing incident reported during active service. The provider further noted that there was well documented research supporting a link between sleep apnea and PTSD, that sleep apnea is a common comorbid condition in patients with PTSD and that sleep apnea was a frequent diagnosis in military personnel. Further, the provider noted that the diagnosis of sleep apnea may explain the Veteran’s active symptoms despite active participation in treatment. This opinion has clear conclusions and supporting data, as well as a reasoned medical explanation connecting the two. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Significantly, the provider noted the Veteran’s PTSD diagnosis, the lack of other risk factors for sleep apnea, and the medical literature supporting a correlation between PTSD and the Veteran’s sleep apnea diagnosis. This opinion is therefore afforded great probative weight. In sum, the Veteran and her representative have contended that her service connected PTSD caused or aggravated her later diagnosis of sleep apnea. Service connection is currently in effect for PTSD with alcohol abuse and sleep disturbance. The Veteran has a current diagnosis of sleep apnea. There is no competent medical opinion of record against the claim. Rather, that is a probative private opinion from December 2020 indicating that the Veteran’s service connected is more likely than resulted in her sleep apnea. Moreover, there is no sufficient basis for the Board to reject this supportive opinion and to further develop the claim. Cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (holding that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant’s case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose). (Continued on the next page)   Accordingly, the Board finds that the preponderance of the evidence is for the claim and entitlement to service connection for sleep apnea as secondary to service connected PTSD is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mariah N. Sim, 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.