Citation Nr: 21028732 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-31 472 DATE: May 11, 2021 ORDER Entitlement to service connection for sleep apnea, to include as secondary to service-connected post-traumatic stress disorder (PTSD), is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran's sleep apnea symptoms began during active service and have been continuous to the present. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for sleep apnea has been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.159. 3.303, 3.304, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from January 1984 to January 1988 and from March 1989 to October 1993. The Veteran was honorably discharged from his first period of active duty service; however, he was discharged under "other than honorable conditions" from his second period of service. An August 1994 Administrative Decision confirmed that the discharge from the second period of service was under other than honorable conditions and a bar to VA benefits. He is therefore barred from VA benefits from any disability incurred during that period; however, the Board of Veterans' Appeals (Board) will still consider the Veteran's claim for service connection with regard to his honorable period of active service. See 38 U.S.C. § 101(18); 38 C.F.R. § 3.12(a). This appeal to the Board arose from a June 2013 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for obstructive sleep apnea. The Veteran submitted additional relevant evidence within one year of that decision. See 38 C.F.R. § 3.156(b). In November 2014, the RO continued the previous denial of service connection for sleep apnea. The Veteran filed a Notice of Disagreement (NOD) in May 2015. A Statement of the Case (SOC) was issued in April 2016, and the Veteran filed a substantive appeal in June 2016. In April 2019, the Veteran presented sworn testimony during a video-conference hearing before a Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran's claims file. The hearing was held before a now-retired VLJ. In January 2021, the Veteran was given the opportunity to request another hearing and was notified that if he did not provide a response in 30 days, it would be assumed he did not want another hearing. In January 2021, the Veteran responded that he did not wish to appear at another Board hearing and asked the Board to consider the case on the evidence of record. Thus, the Board will proceed. In April 2020, the Board remanded the issue of entitlement to service connection for sleep apnea to the Agency of Original Jurisdiction (AOJ) to afford the Veteran an additional VA examination and opinion. A review of the claims file shows there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for further consideration. Legal Criteria for Service Connection Under the relevant law and regulations, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disability was incurred in service. 38 C.F.R. § 3.303(d). In this case, sleep apnea is not a "chronic disease" listed under 38 C.F.R. § 3.309(a) therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b) do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310. To prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). In addition, 38 U.S.C. § 1154(a) requires VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to service connection for sleep apnea is granted. At the outset, the Board finds the private October 2001 cardiopulmonary sleep study report and additional post-service medical records clearly demonstrate the Veteran has a current diagnosis of sleep apnea. Next, the Board finds that the evidence is in relative equipoise as to whether the Veteran had the onset of symptoms of sleep apnea in service and since service separation. The Veteran contends his sleep apnea stems from his active duty service. the Veteran does not assert he was treated for sleep apnea in service, but rather sleep apnea symptoms first manifested in service. The Veteran contends, as an alternate theory of entitlement, his sleep apnea is secondary to his service-connected PTSD. The Board has determined there are no treatment records for the Veteran's period of service from January 1984 to January 1988 were found. See May 2013 VA Memorandum. When, as here, service records are lost or missing, through no fault of the Veteran, the VA has a heightened duty to consider the applicability of the benefit of the doubt rule. Cromer v. Nicholson, 19 Vet. App. 215 (2005); O'Hare v. Derwinski, 1 Vet. App. 365 (1991). As noted above, the Veteran was afforded a hearing conducted before a VLJ in April 2019. During the hearing, the Veteran offered testimony regarding his sleep apnea. The Veteran testified his sleep apnea symptoms began during military service. He stated he began showing symptoms of sleep apnea and fatigue in 1986. He recalled experiencing very loud snoring, gasping for breath, and falling asleep on duty. He testified he did not seek medical treatment for these symptoms prior to 2011 because "he did not know what [sleep apnea] is; I did not know what [sleep apnea] was; I did not know what was going on; my body was changing, I just dealt with it." The Board finds the Veteran is competent and credible to discuss his symptoms. See April 2019 Hearing Transcript. The Veteran has been consistent in his description of the details regarding the onset of his sleep apnea disability. In his May 2011 Statement, the Veteran stated prior to enlisting in the Navy he had no symptoms of sleep apnea. During his enlistment he noticed becoming more fatigued during the day, experiencing tiredness, an inability to rest, and falling asleep on duty. He stated he did not believe it was affecting his health however, he recalled his spouse began complaining about his snoring. As time progressed, he expressed concerns to his doctor. However, until he sought treatment with the VA, he did not understand that he had a sleep disorder. See May 2011 Statement. Additional favorable evidence supporting the finding the Veteran had symptoms of sleep apnea in service, and since service separation, includes competent credible lay statements from his spouse, V.J., and the Veteran's brother, M.T. In her May 2011 correspondence, V.J. stated she and the Veteran had been married twenty-six (26) years. V.J. stated the Veteran's sleeping disorder began during his military service. She stated the Veteran snored loudly and at times would stop breathing. Additionally, she stated he would fall asleep while driving short distances. In his February 2012 correspondence, the Veteran's brother M.T. stated prior to enlisting in the Navy, the Veteran had no trouble sleeping; he did not snore. M.T. recalled when the Veteran returned home on leave, he snored loudly. M.T. observed the Veteran jumping and 'snarling' in his sleep, as if he was losing his breath. M.T. stated he would shake the Veteran and wake him up. M.T. stated he was concerned because the Veteran had never done this before. The Board finds that such lay testimony from the Veteran's spouse and brother competent when it concerns the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno, 6 Vet. App. at 469. With regard to the Veteran's assertions he had sleep apnea symptoms in service and following service, the Board finds the Veteran, V.J., and M.T., are competent and credible to report the onset of symptoms of that disability, specifically trouble sleeping, snoring loudly, the cessation of breathing, and fatigue. See Charles v. Principi, 16 Vet. App. 370 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). As noted above, the Veteran also contends his sleep apnea is secondary to his service-connected PTSD. In December 2013, the Veteran's primary care physician, Dr. S.S., stated the Veteran had been a patient for many years and suffered from both sleep apnea and PTSD for years. Dr. S.S. stated, After reviewing the Veteran's treatment records it is my opinion that it is more likely than not that his sleep apnea is related to his service-connected PTSD. I base my opinion on the fact that due to his severe nightmares, fragmented sleep and weight gain, the symptoms of PTSD, he developed sleep apnea as a result. In May 2019, the Veteran's primary care physician, Dr. J.P, stated he had reviewed the Veteran's service medical records and current treatment records and opined "it is more likely than not that the Veteran's diagnosis of sleep apnea is related to his military history of PTSD symptoms." In support of this opinion, Dr. J.P. stated recent studies from The American Academy of Sleep Medicine show a higher risk of obstructive sleep apnea cases increased with increasing severity of posttraumatic stress disorder symptoms. The evidence that weighs against the finding of sleep apnea symptoms since service includes that, following service separation in January 1988, the evidence of record shows no complaints, diagnosis, or treatment for sleep problems until approximately October 2001. The absence of post-service findings, diagnosis, or treatment for approximately thirteen (13) years after service is one factor that tends to weigh against a finding of sleep apnea symptoms after service separation. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board observes an October 2000 treatment record shows the Veteran reported sleep related complaints of daytime somnolence and heavy snoring. A sleep study was ordered because of suspicion for sleep apnea. The Veteran underwent cardiopulmonary sleep study in October 2001 because of sleep related complaints including heavy snoring, severe daytime hypersomnolence, witnessed apnea, wakes choking/gasping, and nocturia. While the Veteran's sleep apnea is not a chronic disease listed under 38 C.F.R. § 3.309(a), as indicated above, the Board has nonetheless found the evidence at least in equipoise on the question of whether he has sleep apnea symptoms that began during service and continued since service separation, thus tending to show direct service incurrence. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. As discussed above, the Board is granting the service connection claim based on evidence, including that pertinent to service, which establishes that the sleep apnea symptoms began in service and was so incurred in service. The finding that the Veteran has had sleep apnea symptoms since service is supportive of the claim overall because it tends to show that the same symptoms that began in service were the basis for the later diagnosed sleep apnea. See Horowitz v. Brown, 5 Vet. App. 217, 221-22 (1993). In this case, the Veteran was diagnosed with sleep apnea after discharge from service. This diagnosis, coupled with the evidence pertinent to service, specifically the competent and credible lay statements of sleep apnea symptoms in service and since service separation, that later served in part as the basis for a diagnosis of sleep apnea, tends to show that the symptoms of sleep apnea had onset during service; that is, shows that sleep apnea was "incurred in" active service. See 38 C.F.R. § 3.303(d). Turning to the medical opinions of record regarding the etiology of the Veteran's sleep apnea. In April 2014, a VA examiner stated that without sufficient documentation for review indicating that other possible causes of obstruction had been ruled out, the examiner was unable to determine service connection without resorting to mere speculation. The Veteran was afforded an additional VA examination in March 2016. In providing a negative nexus opinion, the examiner noted the Veteran's weight gain since service is a significant risk factor for sleep apnea, as well as the Veteran's buddy statements, which purportedly supported a long history of snoring but no witnessed apneas. In an April 2016 addendum opinion, the examiner opined the Veteran's sleep apnea was not proximately due to or the result of his service-connected PTSD. In support of this opinion, the examiner stated while sleep apnea and PTSD can lead to similar symptoms of difficulty sleeping and daytime fatigue, PTSD is not a known cause of sleep apnea. The examiner further opined it is less likely than not that the Veteran's service-connected PTSD aggravated his sleep apnea. In the April 2020 remand decision, the Board determined the March 2016 opinion was based on an inaccurate factual premise, and thus, not probative, because the supporting lay statements of record include describing witnessed apneas. Additionally, the Board found, the April 2016 opinions were apparently based solely on general medical principles, without consideration of the specific facts and lay assertions related to the Veteran's case. Pursuant to the April 2020 remand order, a VA Sleep Apnea examination was conducted in July 2020. The examiner diagnosed obstructive sleep apnea and provided a negative nexus opinion. In arriving at this conclusion, the examiner noted the Veteran's sleep apnea diagnosis was made thirteen (13) years after separation from service. The examiner stated snoring and breathing issues during sleep are not specific for sleep apnea and are not diagnostic of sleep apnea. The examiner stated the Veteran's significant weight gain post-service and development of obesity post-service likely contributed significantly to the development and onset of sleep apnea. The examiner also opined the Veteran's sleep apnea was less likely than not proximately due to the Veteran's service-connected PTSD, explaining that mental health disorders, including PTSD, have not been shown or confirmed to cause anatomical or tissue changes to the upper airway and therefore do not cause or influence the development of sleep apnea. Additionally, the examiner stated the Veteran's sleep apnea was not aggravated beyond its natural progression by his service-connected PTSD. The Board has the responsibility of determining the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). After review, and resolving any reasonable doubt in the Veteran's favor, the Board finds the Veteran's sleep apnea is related to his active service. See 38 C.F.R. § 3.102. As noted, the April 2014, March 2016, and April 2016 opinions were found inadequate by the Board. Additionally, although the July 2020 VA examiner found the Veteran's sleep apnea unrelated to service, the Board finds this opinion to be of diminished probative value. The July 2020 examiner in part, based his conclusion on the lack of a diagnosis in service. Second, the examiner failed to consider the competent and credible evidence of the Veteran's reports of the onset of his sleep apnea symptoms in service, and the continuation of those symptoms since service separation. Third, although the examiner stated he reviewed the lay statements provided, the examiner failed to explain why the lay statements regarding their observations of the Veteran's onset of sleep apnea were invalid. Consequently, the Board finds the July 2020 etiology opinion incomplete, and hence inadequate. Turning to the question of whether there is a nexus, or link between the current diagnosed disability and service, the evidence is at least in equipoise as to whether the Veteran's sleep apnea had its onset in service. Although there is no direct service medical nexus opinion of record linking the Veteran's current diagnosis of sleep apnea to his active service, the lack thereof is not dispositive. The testimony and lay statements of the Veteran and the lay statements provided by his spouse and brother provide firsthand accounts of the Veteran's observable in-service symptoms and the continued symptomatology of sleep apnea symptoms. The lay statements and testimony offered are given great probative weight as they are considered competent to report what they observed. A layperson is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes through their senses. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d at 1377. Symptoms of sleep apnea are capable of lay observation. The evidence reflects that the Veteran experienced sleep apnea symptoms in service and there have been continuous sleep apnea symptoms since service separation. The Veteran has been diagnosed as having sleep apnea. When weighing the evidence of record, the Board finds the evidence for and against the Veteran's claim is in relative equipoise. Resolving doubt in the Veteran's favor, the Board concludes competent medical evidence diagnosing the Veteran with sleep apnea, as well as the competent and credible lay statements regarding in-service and post-service symptoms, all support a finding the Veteran's sleep apnea began in service and has persisted since that time. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. Accordingly, service connection for sleep apnea is warranted. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Grace Johnk, 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.