Citation Nr: 21028164 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 15-13 983 DATE: May 10, 2021 ORDER Entitlement to service connection for sleep apnea as secondary to service-connected posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT The evidence is in relative equipoise as to whether the Veteran's current sleep apnea was caused by his service-connected PTSD. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea as secondary to service-connected PTSD have been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1971 to May 1974. This matter comes before the Board on appeal from a June 2014 RO (Regional Office) rating decision. In May 2017, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. In November 2019, the Board denied the Veteran's claim of entitlement to service connection for sleep apnea. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). In August 2020, the Court granted the July 2020 Joint Motion for Remand filed by representatives for both parties, vacating the Board's decision and remanding the claim to the Board for further proceedings consistent with the Joint Motion. 1. Entitlement to service connection for sleep apnea as secondary to service-connected PTSD is granted. Service connection is warranted where the evidence of record establishes that an injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, 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, or nexus, between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability that is proximately due to, or results from, a service-connected disease or injury shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Secondary service connection on the basis of aggravation is permitted. 38 C.F.R. § 3.310(b). Compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service-connected disability and not due to the natural progress of the nonservice-connected disease. Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran has claimed entitlement to service connection for sleep apnea, to include as secondary to his service-connected PTSD. The Veteran has stated that he had problems with snoring and that he would stop breathing while asleep during service. He alternatively contends that his sleep apnea was secondary to his service-connected PTSD. (See August 2014 claim form; RO hearing transcript, pages 10-11.) At the February 2015 RO hearing, the Veteran testified that both his wife and someone in "the open bay area" where he slept "complain[ed] about [him] snoring loud or stopp[ing] breathing" when he was in service. (See RO hearing transcript, page 10.) He also testified that he never went to sick call for these problems. (See RO hearing transcript, page 10.) At the May 2017 Board hearing, the Veteran's wife testified that she noticed the Veteran snoring "at one time" and stopping breathing "a little bit" when he came home from service. (See Board hearing transcript, page 9.) The Board notes that, when asked whether he had experienced symptoms of sleep apnea in service, the Veteran started describing symptoms such as "yelling in my sleep, and moving in my sleep, because of friend of mine got killed." (See Board hearing transcript, page 8.) These symptoms have been associated with his service-connected PTSD, however, and not sleep apnea. The Veteran testified that he was sent for a sleep study in 2004 or 2007. (See Board hearing transcript, page 11.) The Veteran's service treatment records reflect that he neither complained of nor sought treatment for symptoms that have been associated with sleep apnea during service. With respect to post-service treatment, an April 2013 VA medical record notes that the Veteran "admitted to snoring but he denied knowledge of periods of apnea, not feeling rested in the mornings or daytime somnolence." A June 2014 VA mental health physician note indicates that the Veteran "doesn't have any signs of sleep apnea." In June 2017, the Veteran underwent an initial sleep screening through VA to evaluate for obstructive sleep apnea. He reported at that time that he had never had a sleep study and had never used a CPAP. He underwent a home sleep study later that month and was diagnosed with mild obstructive sleep apnea. A November 2017 VA primary care physician record notes an assessment of sleep apnea and directs the Veteran to "[t]ake the decongestants at bedtime." This assessment appears in a record that notes, in relevant part, that the Veteran "does admit to recently receiving a CPAP machine and he is having a hard time adjusting to the face mask." Later that month, the Veteran "was seen in Neuro Sleep 30 Day Return vTel Clinic today for established PAP follow up." This record notes that the Veteran had used his CPAP 31 out of 93 days, suggesting that he had initially received his CPAP in August 2017. An October 2018 VA medical record lists "Sleep apnea" as an active medical problem and lists an active problem entry date of November 17, 2017. A December 2018 VA medical record lists sleep apnea on the "Other related medical problems" list. Despite the Veteran's lay testimony that he may have undergone a sleep study in 2004 or 2007, the medical evidence reflects that the Veteran initially underwent a sleep study in 2017. Despite the lay testimony from the Veteran and his wife that he experienced some snoring and stopping breathing while asleep, VA medical records from April 2013 and June 2014 note that the Veteran was not suspected of having sleep apnea. Significantly, it was noted that the Veteran denied knowledge of periods of apnea, not feeling rested in the mornings, or daytime somnolence in 2013. This earlier statement is inconsistent with later testimony. Thus, the Board cannot find that the record shows credible evidence of symptoms attributable to sleep apnea in service and ever since service. No medical professional has directly linked the Veteran's sleep apnea to service. Rather, the only indications of a link between the Veteran's sleep apnea and service come from the Veteran himself. The Board recognizes that there are instances in which a layperson may be competent to offer testimony on medical matters, such as describing symptoms observable to the naked eye or even diagnosing simple conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds, however, that the question of linking in-service snoring and possible interruptions in breathing a few times during service to sleep apnea that was diagnosed more than 40 years later is of such complexity as to require that individuals who provide competent medical evidence on this matter possess a level of expertise that a layperson simply does not possess. The Board will thus turn to the Veteran's next contention, which is that his sleep apnea was caused or aggravated by his service-connected PTSD. Again, the Veteran, as a layperson, does not possess the necessary medical expertise to provide a link between his sleep apnea and his PTSD. Furthermore, as of July 2018, no medical professional had provided an opinion on this question. Therefore, the Board remanded this claim in July 2018 to obtain such an opinion. The Veteran underwent a VA sleep apnea examination in June 2019. Based on review of the record and interview and examination of the Veteran, the VA examiner opined that the Veteran's sleep apnea is less likely than not (less than 50 percent probability) proximately due to or aggravated by his service-connected PTSD. The examiner provided a detailed rationale for this opinion, which includes citation to the Veteran's medical history and discussion of pertinent medical literature and principles. In brief, the examiner acknowledged that "research studies show a correlation between PTSD and Obstructive sleep apnea," but concluded that "the [V]eteran has other pertinent health conditions, which are considered more likely risk factors for developing sleep apnea." The examiner specifically cited the Veteran's obesity and his history of smoking. As noted above, this claim was subject to a July 2020 Joint Motion. In relevant part, that Joint Motion stated that the June 2019 VA medical opinion "failed to provide an adequate rationale explaining whether Appellant's sleep apnea was aggravated by his service-connected PTSD." On remand, the Veteran's accredited representative submitted a March 2021 opinion from a private otolaryngologist. This physician provided the following opinion: Based on the above analysis, evidence provided for this case by the Veteran's own history, review of the Veteran's 3,123-page VA claim's file in its entirety, peer-reviewed medical literature, and my first-hand clinical experience, it is at least as likely as not that [the Veteran's] Obstructive Sleep Apnea was caused by his service-connected Post-Traumatic Stress Disorder. The physician's explanation includes the following: The question has been raised how does a psychiatric disease like Post-Traumatic Stress Disorder (PTSD) cause or worsen a physical abnormality such as Obstructive Sleep Apnea (OSA)? The answer lies in the complex interaction between neurologic biochemistry and upper airway aerodynamics; researchers theorize an arousal-based mechanism via a process known as neuroplasticity the capacity of neurons (nerve cells which transmit signals to the brain) to biologically respond to stimulation by generating new synapses (connections) to other neurons. The physician then provided a detailed explanation of this phenomenon, later noting "complex neuroplastic alterations of the brain cause the sleep fragmentation and recurrent arousals characteristic of PTSD, triggering upper airway instability and promoting sleep-disordered breathing events that define OSA." In addition to citation to pertinent medical literature, the physician also discussed the Veteran's medical history. The Board finds this opinion to be probative, as it was authored by an otolaryngologist who possesses the necessary education, training, or experience to provide competent medical evidence under 38 C.F.R. § 3.159 (a)(1). See Cox v. Nicholson, 20 Vet. App. 563 (2007). As noted above, it is based on review of the record and interview of the Veteran, as well as review of the pertinent medical literature and the physician's own expertise. The physician provided a detailed opinion that discusses the facts of the Veteran's case, pertinent medical principles, and relevant medical literature. The Board therefore finds that the evidence is in relative equipoise and will resolve reasonable doubt in the Veteran's favor. Accordingly, entitlement to service connection for sleep apnea is granted. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Elizabeth Jalley, 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.