Citation Nr: 22005809 Decision Date: 02/02/22 Archive Date: 02/02/22 DOCKET NO. 15-04 645 DATE: February 2, 2022 ORDER Service connection for obstructive sleep apnea is granted. FINDING OF FACT The Veteran's obstructive sleep apnea had its onset in service. CONCLUSION OF LAW 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. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1996 to March 2006, including service in Iraq from September 2003 to September 2004. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded by the Board in September 2018 and July 2021 for further development. Service Connection Entitlement to service connection requires evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and the disease or injury incurred or aggravated during active service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id. Service connection for obstructive sleep apnea The Veteran contends that he has obstructive sleep apnea as a result of his active service or alternatively is due to aggravation by his service-connected posttraumatic stress disorder (PTSD) with persistent depressive disorder. He stated that he was informed by his wife that he would stop breathing in his sleep which prompted him to seek treatment for the condition post-service. See May 2016 Correspondence. The Veteran was provided a VA sleep apnea examination in September 2013, in which it was noted he was diagnosed with mild OSA in May 2013 and would be fitted for CPAP in September 2013. The VA examiner opined that Veteran's OSA was less likely than not related to the service-connected PTSD. The Veteran has asserted that his sleep apnea issue began while he was in service. He states in his February 2015 Form 9 that was not aware he had the disability because he slept alone in service and he was not told he would stop breathing in his sleep. In his October 2016 Notice of Disagreement, he states that he noticed his symptomatology a few weeks after his return from service in Iraq. In the September 2018 Board decision, the Board held the September 2013 VA nexus opinion was inadequate as the examiner did not provide an opinion as to whether the Veteran's sleep apnea has been aggravated by his service-connected PTSD. The matter was remanded for another medical opinion. In April 2019, another VA medical opinion was provided in which the examiner opined negatively and noted the Veteran's medical records showed a BMI greater than 30 since 2010. The examiner stated risk factors of OSA are age, obesity, craniofacial and upper airways abnormalities. As no nexus between PTSD and OSA was identified in the current medical research, the condition was deemed less likely than not proximately due to the Veteran's PTSD. In the July 2021 Board decision, the Board stated the April 2019 addendum opinion was also inadequate; the opinion failed to address the prospect of whether PTSD has at least as likely as not increased the severity of sleep apnea. As there had not been substantial compliance with the Board's September 2018 remand directives, the appeal was again remanded for an additional medical nexus opinion. Subsequent to the July 2021 Board remand, the Veteran was provided an addendum opinion in August 2021. The examiner concluded the Veteran's PTSD, sciatic nerve neuralgia and degenerative arthritis of the spine conditions do not affect the oropharyngeal musculature and lax tissue which are at the root of OSA. Therefore, it was deemed less likely that any of Veteran's service-connected condition caused or aggravated his OSA. See August 2021 C&P Exam. The Veteran was afforded another VA disability benefits questionnaire in September 2021 in which his symptoms are reported as persistent daytime hypersomnolence with required use of a CPAP machine. In another medical nexus opinion, the VA examiner opined the Veteran's OSA was less likely than not aggravated beyond its natural progression by the Veteran's service-connected conditions. The examiner opined the Veteran had a high BMI at the time of the sleep study and that such caused his OSA and there is no medical literature suggesting PTSD can lead to or aggravate OSA directly. The examiner added that while there is literature suggesting indirect correlation through weight gain, no direct aggravation is found. Additionally, there is no medical literature to suggest a lumbar condition or radicular condition can lead to or aggravate OSA. See September 2021 C&P Exam. The Veteran's claim for service connection was again denied by the RO in an October 2021 Supplemental Statement of the Case. In December 2021, the Veteran and his representative submitted an Appellate Brief in response, in which he maintained that his sleep apnea was directly a result of his active service and also secondary to his PTSD. The Veteran referenced medical literature indicating that new studies of young U.S. veterans showed the probability of having a high risk of OSA increased with increasing severity of PTSD symptoms. Reference to a 2015 article, "Study finds high risk of sleep apnea in young veterans with PTSD" was provided. Another article from 2015, "PTSD Severity Linked to Higher Risk of Sleep Apnea in Veterans" was also referenced, which indicated new studies showed that out of a sample of Iraq and Afghanistan veterans with PTSD, 69 percent were at high risk for OSA, and the risk rose along with PTSD symptom severity. The Board acknowledges the VA examinations and subsequent medical opinions that have provided negative nexus opinions regarding the Veteran's claim for service connection. The Board also considers the lay statements from the Veteran and his spouse that his sleep apnea symptoms have been recurrent since service, as well as medical literature provided in support of his claim. In addition to the conflicting medical evidence, the Board finds that the Veteran is competent to report the frequent sleeping issues and other symptomatology of his OSA during and since service and finds his statements to be credible. Further, there is no doubt that the Veteran has been diagnosed as having OSA. Here, even though the VA examiners have rendered negative nexus opinions regarding the etiology of the Veteran's sleep apnea, the Board concludes that there is sufficient evidence to resolve reasonable doubt in the Veteran's favor and grant service connection on a direct basis. Therefore, a remand is not necessary to obtain another medical opinion addressing whether secondary service connection is warranted. Indeed, the competent, credible, and consistent lay evidence of symptoms since service coupled with the fact that medical literature supporting a potential link between the Veteran's PTSD, which started in service, and incidents of sleep apnea, sufficiently establishes that it is at least as likely as not that the Veteran's sleep apnea had its onset during service. After resolving any doubt in the Veteran's favor, the Board finds that the evidence sufficiently establishes that the Veteran's current sleep apnea had its onset in service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Thus, all three elements necessary to establish service connection have been met. Joshua Castillo Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zarar Ahmed, Attorney Advisor 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.