Citation Nr: 21040256 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 16-62 861 DATE: July 2, 2021 ORDER Entitlement to service connection for obstructive sleep apnea, to include as due to environmental exposures arising from service in Southwest Asia during the Gulf War, and to include as secondary to service-connected posttraumatic stress disorder (PTSD), is granted. FINDING OF FACT The Veteran's obstructive sleep apnea is etiologically related to his service-connected PTSD. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for obstructive sleep apnea, as secondary to service-connected PTSD, have been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION Preliminary Matters The Veteran had honorable active duty service with the United States Army from October 1989 to March 1993, to include service in the Southwest Asia (SWA) Theater of operations during the Persian Gulf War. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), in which entitlement to service connection for sleep apnea was denied. The Board notes that in the September 2013 rating decision on appeal, the RO also granted service connection for PTSD and tinea versicolor, and denied service connection for a left leg disability, chronic fatigue, diabetes, and hypertension. In the Veteran's October 2013 notice of disagreement (NOD), he appealed the initial evaluation for PTSD and the denial of service connection for a left leg disability, chronic fatigue, hypertension, and sleep apnea. In December 2014, the Veteran testified at a hearing before a Decision Review Officer (DRO). A transcript of the hearing has been associated with the Veteran's electronic claims file. At the hearing, the Veteran withdrew his claims of entitlement to an increased rating for his PTSD, as well as his claims of entitlement to service connection for chronic fatigue, and hypertension. While the Veteran did not appeal the initial evaluation of his tinea versicolor in the October 2013 NOD, testimony was nevertheless provided for this issue during the hearing. Following the hearing, in an October 2016 rating decision, the RO granted entitlement to service connection for a left tibia/fibula disability, resolving the issue of entitlement to service connection for a left leg disability. Then, in an October 2016 statement of the case (SOC), the Agency of Original Jurisdiction (AOJ) addressed the issue of entitlement to an increased rating for tinea versicolor, as well as entitlement to service connection for sleep apnea. In hs December 2016 substantive appeal (VA Form 9), the Veteran perfected his appeal for the sleep apnea claim. Therefore, based on the foregoing, the issue now before the Board is entitlement to service connection for obstructive sleep apnea. The Board further notes that in his substantive appeal, the Veteran requested a hearing. Accordingly, the Veteran was scheduled for a Board hearing in May 2021. In May 2021, the Veteran withdrew his request for a hearing. Therefore, a hearing has not been conducted and the Board will proceed to adjudicate the claim currently on appeal. Furthermore, following the October 2016 SOC, the Veteran submitted additional evidence with the evidentiary record. The Veteran waived AOJ review of this evidence. See June 2021 VA Form 20-10208 (Document Evidence Submission). Thus, the Board will consider the newly submitted evidence in the first instance. Finally, in a May 2021 letter, the Veteran's representative requested a 90-day extension to submit additional evidence in support of the issue on appeal. The Veteran submitted additional evidence in June 2021. While the 90-day period has not lapsed, it appears that the Veteran has submitted the intended additional evidence in support of the issue on appeal. Regardless, although the 90-day period has not lapsed, as the issue on appeal is granted in this decision, there is no prejudice to the Veteran in adjudicating the claim. SERVICE CONNECTION Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. 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, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Service connection may also be warranted for a disability, which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. To substantiate a secondary service connection claim, the Veteran must show a present disability (for which service connection is sought); a service-connected disability; and competent evidence that the service-connected disability caused or aggravated the disability for which service connection is sought. In addition, for certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). The presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. § 3.309, 3.309(a). When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Also, 38 U.S.C. § 1154(a) requires that 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). Specifically, '[l]ay 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, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Finally, 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 v. Derwinski, 1 Vet. App. 49 (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, to include as due to environmental exposures arising from service in Southwest Asia during the Gulf War, and to include as secondary to service-connected PTSD, is granted. The Veteran seeks service connection for his obstructive sleep apnea. Throughout the appeal period, the Veteran has stated that he developed his condition as a result of exposure to toxins in service. The Veteran has also asserted that his condition is due to his service-connected PTSD. The Board has carefully reviewed the evidence of record and finds that the criteria for service connection for obstructive sleep apnea on the basis of secondary service connection have been met. The Veteran is service connected for PTSD (which is not at issue in this appeal). Service treatment records are silent as to any complaints, treatment or clinical diagnosis of obstructive sleep apnea. The Veteran underwent a sleep study in May 2007, which reflected a diagnosis of obstructive sleep apnea. On VA examination in March 2013, the examiner noted the Veteran's diagnosis of obstructive sleep apnea in 2007. The examiner indicated that the Veteran's sleep disorder is a disease with a clear and specific etiology and diagnosis. The examiner opined that it is less likely as not that the disability pattern or diagnosed disease is related to a specific exposure event experienced by the Veteran during service in Southwest Asia. As the examiner did not provide any rationale for his opinion, the Board finds the March 2013 VA opinion to be inadequate. On VA examination in September 2016, the examiner also noted the Veteran's diagnosis of obstructive sleep apnea in 2007. The examiner noted lay statements of the Veteran's fellow servicemembers as well as his spouse, confirming snoring and restless sleep in service and awakening out of breath. The examiner indicated that the sleep study was not done until 14 years after separation from service, and that there is no documentation that the Veteran's sleep apnea had its onset in service. The examiner further stated that, while it is noted that the Veteran snored in service, the onset of the snoring is not noted. Based on these findings, the examiner opined that it is less likely than not that the current sleep apnea is caused by service. The Board finds this opinion to be inadequate, as it gives minimal consideration and weight to the lay statements and essentially relies on the absence of evidence as there is no documentation that the Veteran's sleep apnea began in service. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The record also includes a June 2021 statement from the Veteran's treating physician, in which the private physician opined that it is as likely as not that the Veteran's obstructive sleep apnea is secondary to his service-connected PTSD. The private physician cited several medical studies which show that an increase in PTSD symptom severity was associated with a significant increase in the probability of screening positive for sleep apnea. Thus, based on the foregoing, the evidence of record includes an opinion that shows that there is a relationship between the Veteran's sleep apnea and service-connected PTSD. There is no other contrary opinion regarding secondary service connection. Therefore, resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for obstructive sleep apnea is warranted on a secondary basis. 38 U.S.C.§ 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. MacDonald, 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.