Citation Nr: 22014028 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 18-28 209A DATE: March 11, 2022 ORDER Entitlement to service connection for sleep apnea, to include as secondary to one or more service-connected disabilities, is granted. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, the most probative evidence is in approximate equipoise as to whether his current sleep apnea is caused or aggravated by his service-connected disabilities. CONCLUSION OF LAW The criteria for service connection for sleep apnea, to include as secondary to service-connected tinnitus and unspecified anxiety disorder and recurrent depressive disorder, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.159, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from December 1980 to July 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). It was previously before the Board in February 2021, and September 2021, respectively, when it was remanded for further development. The Board notes that on July 14, 2021, the Veteran, through his attorney, withdrew his prior request for a Board hearing that was scheduled for August 16, 2021, citing to the Veteran's mental health and scheduling issues. See, July 2021 Third Party Correspondence. 1. Entitlement to service connection for sleep apnea, to include as secondary to one or more service-connected disabilities Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (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). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 C.F.R. §§ 3.309. Competent medical evidence is the type of evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises and/or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale and a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Lastly, in order to deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis The Veteran and his attorney contend that he is entitled to service connection for obstructive sleep apnea because it is directly related to his active-duty service, or in the alternative, because his service-connected tinnitus, anxiety and depressive disorder symptoms have contemporaneously obstructed his sleep pattern. See, April 2021 Third Party Correspondence. The Board notes that the Veteran is currently service connected The Board notes that the Veteran is currently service connected for unspecified anxiety disorder and recurrent depressive disorder at a 100 percent disability rating. A condition precedent for establishing service connection is the presence of a current disability. As an initial matter, the Board notes that the Veteran was diagnosed with obstructive sleep apnea following a sleep study in 2017, and such diagnosis was confirmed by a VA examiner in March 2021, during the initial examination afforded to the Veteran for his claim. Accordingly, the first element for establishing service connection for his sleep apnea disability has been met. With respect to the second element, the Board notes that the Veteran's service-treatment records are silent for in-service treatment or a diagnosis of obstructive sleep apnea. However, the absence of documented treatment in service is not fatal to a service connection claim. A veteran or other lay person is competent to report that which he perceives through his symptoms, which in this case, would be respiratory problems while sleeping, such as snoring. Layno v. Brown, 6 Vet. App. 465 (1994). To that end, the Veteran has provided a "buddy" statement from his wife, B.C. She reports that although they had been married for 21 years, that they have known each other for over 36 years, which includes during the Veteran's active military service; that during that time the Veteran complained of constant ringing of his ears and "feeling blue", which made it very hard for him to fall and stay asleep, and that she observed his restlessness from his disruptive sleep pattern firsthand, which continued post service. See, August 2018 Buddy/Lay Statement. Competent lay evidence is any kind of evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board notes that symptoms of sleep apnea are capable of lay observation, and as the Veteran has been consistent with his statements of disruptive sleep pattern since service, which are corroborated by this supporting competent statement, the Board finds it credible and of high probative value. Accordingly, the second element for establishing service connection, in-service occurrence, has been met. Further, the Veteran has also asserted that even if his sleep apnea is not directly related to his active-duty service, that it is either caused or aggravated by symptoms of his service-connected unspecified anxiety disorder and recurrent depressive disorder. In this regard, the Veteran has reported that his sleep pattern has been continuously interrupted by his ongoing severe anxiety and recurrent depression which was a contributory basis for these diagnoses. See, September 2019 VA psychiatric examination. However, a March 2021 VA examiner opined that the Veteran's obstructive sleep apnea less likely than not (less than 50 percent probability) had an in-service onset and was less likely than not related to his service. The rationale was that the Veteran's primary risk factor for obstructive sleep apnea is "obesity and a very bulky neck and very narrow posterior-oropharynx." The VA examiner went on to discuss tinnitus and medications for anxiety/depression in this rationale but did not provide a separate opinion as to whether the Veteran's obstructive sleep apnea was either caused by or aggravated by his service-connected disabilities, which was not in substantial compliance with the Board's remand directive. Stegall v. West,11 Vet. App. 268 (1998) (a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders). This was the basis for the Board's second remand of this issue in September 2021. In October 2021, the AOJ obtained an addendum opinion which is also unfavorable to the Veteran's appeal; however, the Board finds this negative nexus opinion of low probative value because the examiner did not provide a thorough medical rational in support of his conclusion. Specifically, the examiner stated that the submitted article does not specifically mention sleep apnea. While noting this, the Board observes that this rationale is not an adequate basis to conclusively rule out that the Veteran's sleep apnea could not have been aggravated by his service-connected tinnitus. With regards to his mental disorders, although the examiner acknowledges that psychotropic medication for depression or anxiety has been linked to sleep apnea by the Mayo Clinic, the examiner found a negative nexus on the basis that the Veteran is not currently on any such medication. He further states that the Veteran's weight at the time of his sleep apnea diagnosis (314 pounds) to be a determining factor, noting that there was no evidence of sleep issues at the time of his active service when he was 175 pounds. The Board also finds that these reasons are not persuasive to support the examiner's negative nexus opinion for secondary service connection relating the Veteran's sleep apnea to his service-connected unspecified anxiety disorder and recurrent depressive disorder. The October 2021 VA examiner failed to explain why taking (or lack thereof) psychotropic medication is a significant factor, as opposed to the effects of the Veteran's severe anxiety and depressive symptoms, and how the Veteran's weight is a determinative factor. Further, this examiner did not comment on the Veteran's treating psychologist's (Dr. C.C.) December 2017 opinion that research supports that severe psychological trauma causes sleep to be severely fragmented by sleep apnea, a pattern that Dr. C.C. noted is exhibited by the Veteran. As such, the VA examiner's explanation to support of his finding of a negative nexus for secondary service connection for the V the Board has assigned the October 2021 VA examiner's negative nexus opinion low probative value. Comparatively, the Board finds, Dr. C.C.'s opinion in support of secondary service connection for the Veteran's his sleep apnea disability more persuasive. In his statement, Dr. C.C. noted that there is a strong correlation between the Veteran's sleep apnea disorder to his anxiety disorder, citing to scientific studies referenced in a research article in Everyday Health. In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau, supra. Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). Competent medical evidence is the type of evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises and/or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale and a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); In short, in terms of the evidence in support of the claim, the record contains the statements of the Veteran and his lay witness (his wife), documenting the existence of sleep disturbance going back to the Veteran's active service, the Veteran's additional statements describing how his anxiety and depressive symptoms further disrupt his sleep, and his treating psychologist supporting opinion. As such, in weighing all the evidence, the Board finds that the competent evidence of record in approximate equipoise as to whether the Veteran's obstructive sleep apnea began in service or was caused or aggravated by his service-connected mental disorders. In such cases, the controlling laws provide that service connection is warranted. 38 U.S.C.§§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.B. King, 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.