Citation Nr: 21029920 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 20-08 842 DATE: May 17, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is granted. Entitlement to service connection for heart disease is granted. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance or being housebound is denied. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran's favor, the Veteran's obstructive sleep apnea is related to his service-connected posttraumatic stress disorder (PTSD). 2. Resolving all reasonable doubt in the Veteran's favor, the Veteran's heart disease is related to his service-connected PTSD. 3. The Veteran is not in need of regular aid and attendance and is not housebound due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for heart disease have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for special monthly compensation based on the need for aid and attendance or housebound status have not been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1966 to March 1968. The Veteran passed away in December 2020. The Appellant is his widow, who has been substituted as the claimant in this matter. See 38 U.S.C. § 5121A. This matter comes before the Board of Veterans' Appeals (Board) from an April 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The case was last before the Board in July 2020 and has returned to the Board for further appellate review. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.902(c). 1. Entitlement to service connection for obstructive sleep apnea 2. Entitlement to service connection for heart disease Prior to his death, the Veteran sought service connection for obstructive sleep apnea and heart disease, which he asserted was caused or aggravated by his service-connected PTSD. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, to prove service connection there must be: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be established for a disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439 (1995). With regard to the Veteran's claimed obstructive sleep apnea, the Board finds that the Veteran has been diagnosed with obstructive sleep apnea as shown by a November 2020 VA examination report. Thus, the question for the Board is whether the Veteran's sleep apnea is related to his service-connected PTSD. The Board acknowledges a November 2016 VA examiners opinion that the Veteran's sleep apnea was less likely than not proximately due to or the result of the Veteran's service-connected PTSD. However, the Board finds the examiner's opinion inadequate because the examiner failed to address whether the Veteran's sleep apnea was aggravated by his service-connected PTSD. The Veteran underwent a VA examination in November 2020, during which the examiner opined that it is at least as likely as not the Veteran's sleep apnea is proximately due to or the result of the Veteran's service-connected PTSD. Citing medical literature, the examiner explained that poor sleep quality is almost universal among patients with PTSD and several studies have consistently observed a high prevalence of obstructive sleep apnea in those with PTSD. Moreover, the examiner explained that obstructive sleep apnea is among the most common sleep diagnoses in those with PTSD. The examiner also opined that the Veteran's sleep apnea was not aggravated by his PTSD as it was caused by the condition. In March 2021, a VA examiner opined that the Veteran's sleep apnea was less likely than not proximately due to, the result of, or aggravated beyond its natural progression by the his service-connected PTSD. The examiner explained that medical literature does not support a mental health condition as causative or the potential for aggravation of obstructive sleep apnea, which is due to upper airway soft tissue abnormalities or obesity. The examiner further explained that while some studies have suggested an association between obstructive sleep apnea and mental health conditions, they are cohort studies and do not show causality. The examiner concluded that definite risk factors for obstructive sleep apnea include obesity, craniofacial abnormalities, and upper airway soft tissue abnormalities. Regarding the Veteran's claimed heart disease, the Veteran underwent a VA examination in November 2020, during which the examiner indicated the Veteran had diagnoses of hypertensive heart disease, abdominal aortic aneurism, and cardiomegaly. After review of the record and examination of the Veteran, the examiner opined that the Veteran's claimed heart disease is at least as likely as not proximately due to or the result of his service-connected PTSD. Citing medical literature, the examiner explained that the Veteran's heart disease began subsequent to his service-connected PTSD and the current severity of the Veteran's PTSD warrants by proximity, association of the hypertensive heart disease. The examiner further opined that the Veteran's heart disease was less likely than not aggravated by his PTSD. In March 2021, a VA examiner opined that the Veteran's heart disease was less likely than not proximately due to, the result of, or aggravated beyond its natural progression by his service-connected PTSD. In support of his opinion, the examiner explained that while recent studies are elucidating associations between PTSD and coronary heart disease risk factors, it is less clear whether PTSD is independently associated with incident heart disease and cardiac-specific mortality risk. Many questions concerning the association of PTSD to incident CHD remain open, and more research is needed to determine the precise nature and mechanisms of the association, and which populations are at greatest risk. The examiner further explained that cardiomegaly is an enlarged heart, which is not a disease, but sign of another condition. As such, the examiner opined that medical literature and a review of the medical record does not support a physiologic, biomechanical, or anatomic mechanism for a mental health condition to cause or permanently aggravate cardiomegaly. Upon review of the record, the Board finds that there is evidence weighing both in favor and against the Veteran's claims. The competent and credible medical evidence of record is therefore at least in equipoise as to whether the Veteran's sleep apnea and heart disease are related to his service-connected PTSD. Accordingly, resolving all doubt in the Veteran's favor, service connection for obstructive sleep apnea is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Entitlement to SMC based on the need for aid and attendance or being housebound SMC is payable at the housebound rate if a veteran has a single service-connected disability rated as total, and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or (2) by reason of service-connected disability or disabilities, is permanently housebound. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). An award of a total disability rating based on individual unemployability (TDIU) predicated solely on one disability qualifies as a single service-connected disability rated as total for purposes of establishing entitlement to SMC. See Bradley v. Peake, 22 Vet. App. 280, 293 (2008). SMC is payable at the aid and attendance rate to a veteran who, as a result of service-connected disability, as suffered the anatomical loss or loss of use of both feet or one hand and one foot, blindness in both eyes with visual acuity of 5/200 or less, or is permanently bedridden or with such significant disabilities as to be in need of regular aid and attendance. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). The following criteria are used to determine whether a claimant is in need of the regular aid and attendance of another person: the inability of the claimant to dress himself or herself or to keep himself or herself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliance which, by reason of the particular disability, cannot be done without aid; the inability of the claimant to feed himself or herself through the loss of coordination of the upper extremities or through extreme weakness; the inability to attend to the wants of nature; or, a physical or mental incapacity that requires care and assistance on a regular basis to protect the claimant from the hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352(a). It is not required that all of the conditions enumerated above be found to exist before a favorable rating may be made. The particular personal functions the veteran is unable to perform must be considered in connection with his or her condition as a whole. It is only necessary that the evidence establish that the veteran is so helpless as need of regular aid and attendance, not that there be a constant need. Determinations that the veteran is so helpless as to be in need of regular aid and attendance will not be based solely upon an opinion that the claimant's condition is such as would require him or her to remain in bed. They must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352 (a); see also Turco v. Brown, 9 Vet. App. 222, 224-25 (1996). Upon review of the record, the Board finds that the criteria for establishing entitlement to SMC based on housebound status or the need for regular aid and attendance have not been met. The Veteran underwent a VA examination in October 2016. The examiner indicated that the Veteran was not permanently bedridden and he was able to travel beyond his home. The examiner also noted that the Veteran was able to perform all functions of self-care. During a November 2020 VA examination, the examiner indicated that the Veteran could not ambulate or perform activities of daily living due to weakness, dizziness, and fatigue. The examiner noted that a caregiver and the Veteran's spouse assisted him with his activities of daily living; however, the examiner attributed his need for aid and attendance to residuals of brain aneurism and brain tumors. Prior to his death, the Veteran was service-connected for PTSD, rated as 100 percent disabling and diabetes mellitus, rated as 20 percent disabling. Additionally, the Veteran is now service-connected for obstructive sleep apnea and heart disease. The Board notes that although the November 2020 VA examination report notes the Veteran's need of aid and attendance due to brain aneurism and tumors, the Veteran is not service-connected for those conditions. As such, the Board finds that the evidence does not show aid and attendance was required for the Veteran's service-connected conditions prior to his death. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. As the preponderance of the evidence is against the claim, the doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Romina A. Casadei Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Lance, 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.