Citation Nr: A21008377 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 210311-142258 DATE: April 27, 2021 ORDER Entitlement to service connection for sleep apnea as secondary to posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT The Veteran’s sleep apnea is proximately due to his service-connected PTSD. CONCLUSION OF LAW The criteria for service connection for sleep apnea as secondary to PTSD are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1963 to October 1967. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2020 rating decision by a Department of Veteran’s Affairs (VA) Regional Office (RO). The rating decision on appeal was issued in September 2020 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In October 2020, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a September 2020 rating decision. In February 2021, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the initial rating decision. Therefore, the Board may only consider the evidence of record at the time of the initial rating decision. In the March 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the September 2020 AOJ decision on appeal. 38 C.F.R. § 20.301. Service Connection In order to prevail on the issue of entitlement to secondary service connection, there must be: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence, generally medical, establishing a connection between the service-connected disability and the current disability. 38 C.F.R. § 3.310; Wallin v. West, 11 Vet. App. 509, 512 (1998). Entitlement to service connection for sleep apnea as secondary to posttraumatic stress disorder (PTSD). The Veteran seeks entitlement to service connection for his obstructive sleep apnea as secondary to his service-connected PTSD. Following a review of the Veteran’s record, the Board finds the Veteran has obstructive sleep apnea which was caused by his PTSD. As an initial matter, the September 2020 rating decision made two favorable findings. VA found that the Veteran did have a current disability of sleep apnea and that the claimed primary disability, PTSD, is service connected. These favorable findings are binding on the Board. See 38 U.S.C. § 5104A; 38 C.F.R. § 3.104(c). As a result, the first and second element of secondary service connection has been met. 38 C.F.R. § 3.310; Wallin, 11 Vet. App. 509. The question remaining before the Board is whether the Veteran’s current sleep apnea is a result of or was aggravated by his service-connected PTSD. The Veteran’s service treatment records are silent for complaints of or treatment for sleep apnea. The Veteran’s September 1963 entrance examination denied any issues regarding the Veteran’s sleep but did note he had “hypertrophied tonsils.” Additionally, during his October 1967 separation examination the Veteran again denied any frequent trouble sleeping but noted his tonsil condition was still prevalent. In an April 2000 and November 2000 VA outpatient record, the Veteran reported sleeping well and denied any sleep disturbances. However, in May 2006 during a VA mental health examination the Veteran reported having sleep disturbances in addition to occasional nightmares. Additionally, in a June 2016 outpatient record, the Veteran reported still feeling fatigued despite having a good night’s rest and a mid-morning nap. He reported feeling tired throughout the day. In an August 2016 VA outpatient record, the Veteran reported feeling fatigued and reported he has been snoring for the “past few years.” He believed this issue to be age related but his wife of over 25 years witnessed an apnea episode and raised her concerns with the Veteran, causing his to seek further treatment. In August 2016, the Veteran underwent a sleep study and was diagnosed with “moderate sleep apnea.” As a result, the Veteran was given a continuous positive airway pressure (CPAP) machine to improve his night-time breathing. During an October 2019 VA examination for the Veteran’s mental health disorders he reported having chronic sleep impairment. The Veteran also stated that while in service he would wake up every hour due to the constant threat of attack. The Veteran’s wife submitted a statement in May 2020. She asserts regarding the Veteran’s sleep apnea that she had witness him having sleeping problems, fatigue, snoring, restless sleep patterns, and was waking often. She further states that the Veteran’s sleep issues cause him to be “irritable and moody.” In conclusion she stated that the Veteran is “always fatigued and [has] low energy” which requires him to take mid-day naps. In May 2020 the Veteran also submitted a statement in support of his claim. The Veteran asserted that he was physically assaulted on two separate occasions while in service, the first of which resulted in a hospital stay. He then stated he believed his sleep apnea resulted and then was further worsened by his “traumatic war time experience.” He recounted that while dreaming of his experiences of war he would be fighting in his sleep, “gasping for air as if [he] were choking.” He then asserted that his sleep apnea symptoms began with his PTSD symptoms. He would “have episodes of waking up and coughing” with a sore throat to which the Veteran stated greatly affected his daily life. In May 2020 the Veteran submitted a sleep apnea disability benefits questionnaire in addition to a statement from a private provider. The provider, in the questionnaire, stated the Veteran has obstructive sleep apnea with day-time fatigue and irritability. In the accompanying statement the provider stated he is a “board-certified Physician’s Assistant” and had reviewed the Veteran’s record prior to offering a nexus opinion. The provider detailed the onset of the Veteran’s PTSD and sleep apnea, stating that the symptoms of both conditions began at the same time. The examiner then further detailed the Veteran’s sleep apnea symptoms that effect his day to day like which include, “daytime hypersomnolence, inattentiveness due to fatigue, forgetfulness, and poor concentration.” The provider then cites to three medical articles that support a correlation between obstructive sleep apnea and psychological disorders. The provider also cites to three prior Board decisions that granted service connection for sleep apnea as secondary to PTSD. However, the prior Board decisions are not binding on any future Board decision. Furthermore, those decisions were largely based on an increase in weight due to PTSD that then resulted in obstructive sleep apnea. The record does not support that the Veteran had a significant weight gain prior to his sleep apnea diagnosis or at any time during the appeal period. Additionally, this theory was not asserted by the Veteran nor his providers. As a result, the prior Board decisions submitted by the Veteran’s provider are afforded no probative weight in this matter. Nonetheless, the examiner concluded that it is “at least as likely as not that [the Veteran’s] obstructive sleep apnea is proximately due to, or the result of, his service connection for his service-connected PTSD.” The examiner came to this conclusion based on a review of the Veteran’s records in connection with his medical expertise and the available medical literature. The Board finds this opinion probative, as it provided a clear conclusion with supporting data, and reasoned medical explanations connecting the two. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The VA then requested a VA examination be conducted for the Veteran’s sleep apnea. In August 2020 a VA examiner reviewed the Veteran’s records and stated that “the Veteran’s sleep apnea [is] at least as likely as not (50 percent or greater probability) proximately due to or the result of posttraumatic stress disorder.” However, the examiner then stated that based on their review of “multiple medical literature” that there was no medical evidence of PTSD causing sleep apnea. In September 2020 the VA requested an addendum opinion as the August 2020 examiner’s conclusion and rationale did not align. The September 2020 examiner concluded that the Veteran’s sleep apnea was not the result of his PTSD stating there was no medical literature to support a connection. Identical verbiage regarding the Veteran’s sleep apnea as a result of his service-connected PTSD was offered in both the August 2020 VA examination and September 2020 addendum opinion. However, the examiner failed to take into consideration the articles submitted by the Veteran’s private provider in May 2020 that show a connection between PTSD and psychological disorders. Additionally, the examiner did not indicate any aspects of the Veteran’s record that lead him to this conclusion. As the examiner did not provide a clear conclusion with supporting data nor a reasoned medical explanation connecting the two, the Board finds this examination inadequate and affords it little probative weight. Id. The record reflects that the Veteran has a current diagnosis of obstructive sleep apnea and is service connected for PTSD. Additionally, the May 2020 provider offered a medical opinion based on their review of the record, available medical literature, and his expertise linking sleep apnea to the Veteran’s PTSD. The Board finds the claim is at least in equipoise; the Veteran’s current sleep apnea is the result of his service-connected PTSD. The claim is granted. Emily Tamlyn Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Associate Counsel, S. Conti 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.