Citation Nr: 21031953 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 16-15 598A DATE: May 25, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is granted. FINDING OF FACT The Veteran's OSA began during active service or is otherwise related to his service. CONCLUSION OF LAW The criteria for service connection for OSA have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty from October 1974 to October 1976 and from September 1977 to September 1995. This matter comes before the Board of Veterans' Appeals (Board) from a November 2012 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). In September 2018, this matter came before the Board. In its decision, the Board remanded the claim and instructed the agency of original jurisdiction (AOJ) to obtain a VA medical opinion regarding the Veteran's OSA pursuant to McLendon v. Nicholson, 20 Vet. App. 79 (2006). This matter returned to the Board in January 2020. In its decision, the Board remanded for failure to comply with the September 2018 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, the Board found the July 2019 VA medical opinion inadequate because the examiner relied on the lack of in-service treatment or diagnosis of a sleep condition and did not consider the Veteran's current condition, post-service treatment, and lay statements. This matter now returns to the Board. A new VA examination was conducted on November 2020 pursuant to the January 2020 remand. The Board finds that the AOJ substantially complied with the January 2020 remand directives. Stegall v. West, 11 Vet. App. at 271. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A disease first diagnosed after service may be service connected if all the evidence, including pertinent service records, establishes that it was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.102, 4.3. Entitlement to service connection for OSA is granted. The Veteran has a current diagnosis of sleep apnea. He contends that his sleep apnea was incurred in or cause by service. See May 2021 Appellant's Brief. As an initial matter, the Board conceded the element of a current disability in its September 2018 Decision. Service treatment records (STRs) reveal OSA symptoms, such as complaints of headaches, sleep disturbances, and breathing difficulty. The Veteran reported shortness of breath on a July 9179 Report of Medical History. A record dated May 1991 reveal that the Veteran experienced headaches since being redeployed from Saudi Arabia. A record dated September 1993 notes chronic headaches. Specifically, it is noted that the Veteran experiences headaches upon waking up. An October 1993 record notes bilateral headaches in the frontal/temporal region. Moreover, the record notes that the Veteran reported headaches occurring every week and the Veteran wakes up throbbing. A record dated January 1994 documents that the Veteran has chronic headaches and that he wakes up with headaches. Further, the doctor noted that the Veteran has probable cluster headaches. A record dated in April 1995 noted that the Veteran experienced headaches every day and has been losing sleep. A June 1995 Report of Medical History noted that the Veteran has severe headaches as well as asthma. Various post-service private treatment records touch on the Veteran's OSA symptoms. In September 2001, a neurology record states that the Veteran has chronic migraines with possible OSA. In September 2002, the Veteran underwent a private sleep study at North Texas Sleep Disorders Center at Neurology Associates of Arlington. The polysomnography report revealed that the Veteran has OSA and was prescribed a nasal CPAP machine. A June 2003 neurology record documents the Veteran having headaches in the bitemporal area upon waking up. A September 2011 neurology record notes that the Veteran's CPAP machine is helping significantly with his headaches. A private treatment record dated June 2014 notes that the Veteran was having morning headaches, however they resolved once the Veteran used his CPAP machine correctly. In November 2020, the Veteran was afforded a VA examination which confirmed a diagnosis of obstructive sleep apnea. The examiner concluded that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. For rationale, the examiner stated "following service he was followed by neurology who suggested that his sleep apnea may be the cause of his headaches...according to the classification criteria of the third edition of the International Classification of Headache Disorder (ICHD-III), a sleep apnea headache is a recurrent morning headache in a person who has been diagnosed with sleep apnea...While initially noted that the Veteran was thought to have improved with CPAP use; later notes document the Veteran's morning headaches persisted despite being treated for his sleep apnea. In 2003 he was still noted to have frequent morning headaches. He was also noted to have cervical spasm and was placed on a muscle relaxant. His neurology note dated [August] 3, 2003 noted after the use of muscle relaxant his morning headaches resolve, which would suggest that the muscle spasms and not his sleep apnea was the cause of his morning headaches. I could find no other documented symptoms related to sleep apnea during service." Additionally, the medical examiner cited to various literature. In support of his claim, the Veteran provided a May 2021 a private medical opinion by Dr. M.R. who reviewed the Veteran's VA and private medical records, as well as his claims file to include the prior VA examinations of record. Dr. M.R. concluded that "[the Veteran's] lay statements, STR, and VA records show that his OSA began during his military service after his deployment to Saudi Arabia. [the Veteran] reported that he experienced problems sleeping, daytime hypersomnolence, fatigue, difficulty breathing, and waking at night gasping for breath after returning from Saudi Arabia. His STRs also reflect complaints of sleeping problems and difficulty breathing. They also show weight gain and reports of morning headaches which further supports Mr. [REDACTED] statements regarding the onset of his symptoms. Based on my training, experience, and professional qualifications and under the penalty of perjury, it is more likely than not that [the Veteran's] OSA requiring treatment with CPAP manifested during his military service and was undiagnosed because it was incorrectly assumed his sleeping issues were a symptom of PTSD. It is my opinion that Mr. [REDACTED] OSA is related to his PTSD as the peer reviewed published medical literature shows a relationship between PTSD and OSA and the facts of [the Veteran's] case show a clear cause and effect relationship between his PTSD and OSA. However, as stated above, sleep issues related to PTSD are separate and distinct from the symptoms and issues related to OSA. The treatment for the two condition are different and the impact from the two conditions are different. In conclusion, [the Veteran] deployed to Saudi Arabia where he suffered PTSD as noted by the VA, his PTSD in turn caused his OSA, the symptoms of which began during his military service." The November 2020 VA examiner's opinion is given little probative weight. In rendering her opinion, she noted "While was initially noted that the Veteran was thought to have improved with CPAP use; however, later notes document the Veteran's morning headache persisted despite being treated for his sleep apnea. In 2003 he was still noted to have frequent morning headaches...I could find no other documented symptoms related to sleep apnea during service." It is unclear whether the examiner considered relevant STRs because she failed to cite or mention these records, which include the September 1993 STR which notes chronic headaches upon waking up, and the October 1993 record which documents the Veteran's bilateral headaches occurring each week and throbbing pain upon waking up. Additionally, the examiner states that the Veteran's frequent morning headaches did not resolve with use of the CPAP machine; however the Veteran's private treatment records dated June 2014 states, "He does have obstructive sleep apnea. He previously was having morning headaches. It [was] once he used the CPAP machine correctly, his morning headaches resolved." Additionally, the Board notes that the Veteran is currently service connected for his PTSD. The October 2012 VA examination for PTSD of record documents several notes of sleep disturbances, difficulty staying asleep, and chronic sleep impairment. It is unclear whether the examiner took these facts into account when rendering her opinion as there is no mention of these facts. Furthermore, although the examiner cited to various medical literature, the examiner failed to discuss how most of the literature cited relate particularly to the Veteran's specific facts. Finally, the VA examiner notes that she was unable to find other documented symptoms of sleep apnea during service; however, the Veteran's STRs document shortness of breath and difficulty sleeping. Due to these deficiencies, the Board assigns little probative weight to the November 2020 VA medical opinion. The May 2021 private medical opinion by Dr. M.R. is given more probative weight. Dr. M.R.'s opinion was based on a thorough review of the record. She outlined and documented the correct relevant facts of record, including the Veteran's lay statements. Additionally, she cited to a surplus of medical literature and cross-referenced the literature to the Veteran's specific facts in her analysis. The private medical opinion provided is substantiated by a thorough and fully articulated rationale. As such, the Board assigns more probative weight to the private opinion by Dr. M.R. Accordingly, the review of the evidence of the record shows that the Veteran's symptoms of OSA began during service and have continued since. Therefore, entitlement to service connection is warranted. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Law Clerk for the Board N. Jamordee 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.