Citation Nr: 21032116 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 17-45 983 DATE: May 25, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is granted. FINDING OF FACT The evidence of record is in relative equipoise as to whether the Veteran's obstructive sleep apnea is associated with his service-connected post-traumatic stress disorder (PTSD). CONCLUSION OF LAW The criteria for entitlement to service connection for obstructive sleep apnea are met. 38 U.S.C. §§ 1110, 7105; 38 C.F.R. §§ 3.102, 3.303, 3.310(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1970 to August 1973 during the Vietnam Era, with service in Vietnam, from December 1990 to May 1991, during the Gulf War Era, from April 2003 to June 2003 and from May 2006 to July 2007 with service in Southwest Asia. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision letter issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and his representative appeared before the undersigned Veterans Law Judge at a February 2021 Board video hearing by virtual technology. A transcript of the hearing is of record. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires: (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 also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, 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 claimant. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). 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). Interest may affect the credibility of testimony; however, it does not affect competency to testify. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). It is the Board's duty as factfinder to assess the credibility and probative weight of evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 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 obstructive sleep apnea is granted. At the outset, the Board finds that the first and second elements of Shedden are met as the totality of the evidence reflects that the Veteran has a current diagnosis of obstructive sleep apnea and an indication that the obstructive sleep apnea is related to the Veteran's service or service connected PTSD. Shedden, 381 F.3d at 1167. Illustratively, in an October 2008 letter from a licensed clinical social worker, the social worker opined that the Veteran's PTSD symptoms have consistently worsened since his return from Iraq and noted that he was also recently prescribed a sleep medication as his nightmares and sleep disturbances increased. An October 2012 polysomnogram reports reveals a finding of OSA. Hence, the remaining question before the Board is whether there exists a causal relationship between the present disability and the Veteran's service or a service-connected disability. The lay evidence of record of record reflects many statements describing the Veteran's condition simultaneously with his PTSD and return from deployment tour. For example, at his February 2021 video hearing, the Veteran testified that during his service, he had increased problems sleeping, concentrating, fatigue, weariness which he thought was probably some symptoms of PTSD at the time and described the supporting evidence he submitted. The Board notes that in a June 2013 statement, the Veteran stated that before May 8, 2006, he did have an issue associated with sleeping. His sleep was interrupted by the dreams and at the time, it was concluded that his sleep interruptions were due to dreams attributed to his PTSD. He stated that during his 2006 to 2007 deployment, his sleep problems gradually changed and increased. Additionally, with his August 2017 formal appeal to the Board, the Veteran submitted medical literature regarding the cause of sleep apnea from the Mayo Clinic. Then, there are numerous lay statements regarding the Veteran's sleep apnea condition describing the time, place, and occurrence of the condition as noted by the Veteran's fellow service members, family, and himself. Illustratively, in a November 2008 statement for an increase to his service-connected PTSD rating, the Veteran stated that symptoms, including sleep problems worsened. In a December 2012 statement, the Veteran's daughter M.B. stated that there was a significant change in her father's sleep patterns from before he was activated on his last tour from May 2006 to July 2007. She stated that he had sleep problems before his last tour, but after returning, there was a significant increase in the frequency and intensity of his snoring and she would have to check that his breathing was okay, as the pattern was abnormal enough for her to be concerned. In a February 2013 statement, the Veteran's daughter L.O. indicated that since his return from, deployment, her father reported difficulty sleeping and worsening symptoms. In a March 2014 statement submitted by Veteran T.C., T.C. stated that the Veteran mentioned to him, and he noticed, the Veteran's change in sleeping upon return from for demobilization in June 2007. In a February 2017 statement, Veteran K.K. stated that during tour with the Veteran, the Veteran transitioned over several months from restlessness and light snoring to very restless sleep with irregular, labored breathing that would suddenly stop followed b gasping. In a July 2017 statement, the Veteran's wife stated that she and the Veteran married in 2008 and over the years, she has seen him gradually change and deteriorate in many ways, one of which the most noticeable change being his sleep patterns. Turning to the favorable medical evidence of record, in an April 2013 private opinion, a nurse practitioner opined that it is as likely as not that the Veteran's sleep apnea developed while on active duty in Iraq. The examiner rationalized that sleep apnea develops over time and it is difficult to determine exactly when the Veteran's condition began but a review of the Veteran's records indicate that he has a history of sleep problems, which before deployment were related to PTSD and since deployment were related to sleep apnea. In an April 2014 private opinion, the nurse practitioner again opined that it is as likely as not that the Veteran's sleep apnea developed while on active duty in Iraq and rationalized that sleep apnea develops over time and it is difficult to determine exactly when the Veteran's condition began but while it cannot be proven that sleep apnea occurred during active service duty, it also cannot be proven that it did not occur during active duty. In May 2014, private Dr. S.R. concurred with the April 2014 opinion. In May 2013, private medical doctor, Dr. S.V.R. noted a diagnosis of OSA and opined that it is reasonable to believe that the condition began while in active duty in Iraq. Dr. S.V.R. rationalized that the condition develops over time and noted the associated symptoms but indicated that it is very difficult to determine when the condition began. The Board notes that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). In this regard, although the private opinions do not narrow down a specific date as to when the condition began, they do provide a conclusion explaining that the condition develops over time and that it likely began while in Iraq in relation to his history of PTSD. While not the most elaborated of explanations or of sophisticated rationalizations, the opinions sufficiently informs the Board of the medical expert's judgment on the medical question and the essential rationale for that opinion, and such rationale is easily discernable. Nieves-Rodriguez, 22 Vet. App. at 301. The examiners reasoned with consideration and acknowledgement based on the history of the condition in relation to lay statements and the medical evidence. Thus, the Board reviews the totality of the evidence to assess the value, if any, to be accorded to the medical evidence. First, the Board finds the factual basis of the rationale of the opinions to be adequate. Here, the Board finds that the opinions reflect symptoms as described by the contemporaneous lay statements, the described symptoms manifesting simultaneously with the Veteran's deployment and PTSD. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Essentially, the medical opinion validates the lay statements. Further, the Board finds no reason to doubt the credibility of the lay statements herein and as such, credits the lay statements. Thus, the accuracy of the factual basis of the examiner's opinion is not called into question. Additionally, the based on the conclusion upon review of the Veteran's medical history. Hence, the Board finds the opinion to be adequate and thus affords the opinion some probative value. On the other hand, the unfavorable medical evidence of record reflects a January 2014 VA opinion in which the examiner was requested to opine whether the Veteran's unspecified sleep apnea is at least as likely as not related to exposure to environmental hazards while service in Iraq and Southwest Asia or does the condition constitute a medically unexplained chronic multi-symptom illness. The examiner opined that at that point in time, there was no medical evidence that environmental hazards causes sleep apnea, which is a congenital problem involving the larynx and the central nervous symptoms. The examiner then concluded that he would have to resort to mere speculation to answer the question. Here, the Board notes that the medical evidence of record raised a secondary theory of service connection, regarding his service-connected psychiatric disability, as reviewed in the Veteran's medical history and statements noted above. At the February 2021 Board hearing, the Veteran's representative stated that the opinion only opined as to whether the condition was related to environmental hazards in Southwest Asia, which was not the Veteran's contention. As such, the January 2014 VA opinion, is inadequate, on its face, as the opinion does not address whether the condition is connected to his service-connected disability. In addition to direct service connection, a disability may also be found service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). Further, the opinion did not address whether the condition is otherwise directly related to service, does not address any of the lay statements of record, nor the favorable medical evidence of record. As such, the Board assigns no probative weight to the VA. Thus, the Board assigns no probative weight to the VA opinion as it fails to adequately address the evidence of record. This means there is no existing, probative medical opinion in the record to contradict the finding favorable evidence of record. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Board may not substitute its own medical judgement in trying to make sense of it. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). Thus, after a review of the claims file in conjunction with the applicable laws and regulations, the Board finds the evidence of record is in relative equipoise as to whether the Veteran's obstructive sleep apnea is related to his service-connected PTSD. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. As such, the Board finds that since the evidence of record is in relative equipoise as to whether his obstructive sleep apnea is related to his service-connected PTSD and the benefit of the doubt rule applies to each claim, the Veteran's claim of entitlement to service connection for obstructive sleep apnea, to include as secondary to his service-connected PTSD, is granted. Id.; See also 3.310. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Alli, 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.