Citation Nr: 25004605 Decision Date: 04/03/25 Archive Date: 04/03/25 DOCKET NO. 10-46 545 DATE: April 3, 2025 ORDER Entitlement to service connection for obstructive sleep apnea, aggravated by service-connected posttraumatic stress disorder (PTSD), is granted. REMANDED Entitlement to service connection for obstructive sleep apnea on a basis other than aggravation is remanded. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, the Board finds that the weight of the evidence shows that the Veteran's sleep apnea was worsened or aggravated by service-connected posttraumatic stress disorder (PTSD). CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea as aggravated by posttraumatic stress disorder, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 2004 to May 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision issued by a Regional Office of the Department of Veterans Affairs (VA), which is the Agency of Original Jurisdiction (AOJ). In March 2013, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript has been associated with the claims file. In February 2024, the Board issued a decision denying entitlement to service connection for a sleep disability to include sleep apnea. The Veteran appealed the February 2024 Board decision to the United States Court of Appeals for Veterans Claims. In September 2024, the Court granted a Joint Motion for Partial Remand vacating the February 2024 Board decision denying entitlement to service connection for a sleep disability, to include sleep apnea, and remanding the matter for further proceedings consistent with the Joint Motion. 1. Entitlement to service connection for obstructive sleep apnea on the basis of aggravation by service-connected PTSD. Service connection may be established for disability caused by disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. In order to establish service connection for a claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence, generally medical, of a causal relationship between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be established for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in-service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Secondary service connection may be established for a disability that is proximately due to, or aggravated by, a service-connected disability. 38 C.F.R. § 3.310. Competent lay evidence means any 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 the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and may provide sufficient support for a claim of service connection. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge, such as experiencing a physical symptom such as pain. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Therefore, the Board must assess the competence and credibility of lay statements. Barr v. Nicholson, 21 Vet. App. 303 (2007). 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 weight and credibility are factual determinations going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997). A veteran or appellant need only demonstrate that there is an approximate balance of positive and negative evidence to prevail. To deny a claim on its merits, the weight of the evidence must be against the claim. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). While the Board must provide reasons and bases supporting a decision, there is no need to discuss, in detail, every piece of evidence submitted by or on behalf of the Veteran. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence of record. The Appellant should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Veteran contends that service connection is warranted for sleep apnea that starting during service and continues to the present. Alternately, the Veteran contends that sleep apnea is due to, caused by, or has been aggravated by service-connected disabilities. After review of the evidence, the Board find that service connection for obstructive sleep apnea is warranted because sleep apnea has been aggravated by service-connected PTSD. The parties to the Joint Motion agreed that a November 2022 VA medical opinion, including a February 2023 addendum, was inadequate. In February 2025, the Veteran submitted a private medical opinion. The February 2025 private medical opinion expressly concedes that the Veteran's obesity, shift work, and smoking may have contributed to the sleep apnea, but does not include any further discussion regarding those causes or risk factors. The private provider states that the opinion is "rendered to a reasonable degree of medical certainty." The provider provides an opinion supporting that posttraumatic stress disorder (PTSD) "causes or worsens" sleep apnea through a mechanism of neuroplasticity, essentially resulting in weakened throat muscles, and causing fragmented sleep due to a low arousal threshold, causing those with PTSD to wake up too easily. The Board notes that the private medical opinion repeatedly states that PTSD "causes or worsens" sleep apnea, but does not discuss the significance and importance of the other conceded causes or potential causes such as obesity, shift work, and smoking. After a holistic review of the February 2025 private opinion, the Board finds that the opinion is incomplete with respect to secondary causation but contains a complete rationale supporting that PTSD aggravates sleep apnea. In one section, the provider cites to a study showing that upper airway instability was triggered by sleep fragmentation in normal volunteers, noting that sleep fragmentation promoted sleep disordered breathing events in "normal" individuals, presumably meaning those without PTSD. The provider then connected sleep fragmentation in individuals with PTSD to worsening of sleep apnea, citing a study showing a strong correlation between anxiety and severity of sleep apnea. Despite using the phrase "causes or worsens" repeatedly, the Board finds that the thrust of the February 2025 rationale primarily supports that aggravation is possible in individuals with PTSD, but the provider did not apply those conclusions to the Veteran's specific fact pattern and medical history or address the other causes of sleep apnea. The Board notes that the February 2025 private opinion is presented as near "medical certainty," but quickly acknowledges and discards causes or risk factors such as obesity, smoking, and shift work, without any explanation. The medical opinion lays out a possible mechanism of aggravation of airway obstruction by psychiatric symptoms in some veterans, but does not explain why it is "reasonable medical certainty" that the Veteran's PTSD caused the Veteran's obstructive sleep apnea, or even that the evidence for secondary causation by PTSD is at least in equipoise. The February 2025 medical opinion does not convincingly differentiate between causation and aggravation, and does not adequately address the causes of the Veteran's sleep apnea. Rather, the provided rationale tends to support aggravation of sleep apnea and in some instances, the rationale and cited evidence supports that PTSD worsens sleep quality generally as opposed to worsening obstructive sleep apnea. For example, the provider states that in combination with the frequent nightmares which are characteristic of PTSD, it is easy to understand why sleep disturbance is a core feature of PTSD, rather than a consequence of the disease. The Board notes that obstructive sleep apnea does not encompass any and all sleep-related symptoms and problems, but is a specific medical condition involving an obstruction of the airway. The private provider cites two studies finding that trauma-related nightmares are associated with excess awakenings after sleep onset but not "general nightmares," but increased awakenings are not necessarily due to sleep apnea. The private opinion does assert a potential connection between wakefulness and a worsening of the airway obstruction present in obstructive sleep apnea and thereby increasing the severity of sleep apnea, but a significant portion of the opinion seems to focus on PTSD resulting in sleep disturbances generally. In fact, the opinion concludes that peer-reviewed literature supports an association between PTSD and obstructive sleep apnea, represented in the Veteran by PTSD hypervigilance preventing sleep onset and sleep apnea causing awakening and gasping for breath. The opinion further concludes that there is a synergistic relationship between PTSD and obstructive sleep apnea because "the two conditions are linked to one another and work together to degrade [the Veteran's] sleep conditions." In other words, both disabilities manifest with symptoms that negatively impact the Veteran's sleep. Even under the most favorable interpretation, the conclusion section supports aggravation rather than causation. The February 2025 private opinion also presents a second theory of aggravation, finding that the Veteran's PTSD interferes with treatment of obstructive sleep apnea. In an interview, the Veteran reported feeling constrained by continuous positive airway pressure (CPAP) treatment and having a feeling a suffocation. The private medical provider notes that individuals with PTSD experience can experience claustrophobia that interferes with or prevents CPAP therapy, and concludes that the Veteran's PTSD aggravates the sleep apnea by interfering with CPAP therapy. That is a complete rationale because the provider cites evidence showing that PTSD can interfere with CPAP treatment, and applies that evidence to the Veteran's case to convincingly conclude that the Veteran's PTSD interferes with CPAP treatment of sleep apnea and in that way worsens the disability. The Veteran reported using CPAP therapy approximately three times per week when not feeling claustrophobic. The Board notes that the Veteran reports CPAP therapy is beneficial when used, and endorses feeling better due to sleeping longer. Resolving reasonable doubt in favor of the Veteran, the Board finds that the weight of the evidence shows that the Veteran's obstructive sleep apnea is aggravated by PTSD because PTSD interferes with CPAP treatment. The Board finds that the weight of the evidence supports a finding that the Veteran's sleep apnea has been aggravated by service-connected PTSD. The Board is not free to substitute its own judgment for a medical expert. Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Board assigns the February 2025 private medical opinion significant weight to the extent that medical opinion concludes that the Veteran's PTSD aggravates the sleep apnea disability. The private provider presents a relatively complete chain of aggravation or worsening of sleep apnea caused by PTSD. There are no other complete medical opinions of record. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for the Veteran's obstructive sleep apnea on the basis of aggravation by PTSD is warranted, and service connection is granted. 38 U.S.C. § 5107. REASONS FOR REMAND 1. Entitlement to service connection for obstructive sleep apnea is remanded. The parties to the Joint Motion agreed that the VA medical opinions and Board decision did not adequately address the Veteran's reports of potential sleep apnea or sleep disorder related symptoms in service. The Joint Motion notes that the VA opinion(s) relied solely on the diagnosis date and lack of complaints and treatment records in service and did not address the Veteran's lay statements made during a December 2021 Board hearing reporting potential sleep apnea symptoms in service, and secondly, that the Board must address whether the Veteran's description of symptoms during service supports the later diagnosis of obstructive sleep apnea by a medical professional. When VA provides an examination or obtains an opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). An opinion that relies only on the absence of symptoms or treatment in service is not adequate. A lack of medical evidence in service treatment records does not preclude service connection. Buchanan v Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an absolute bar to the service connection claim). In this case, the Veteran reported potential sleep apnea symptoms after service and those statements have not been addressed, and the parties to the Joint Motion agreed that the Board must address the Veteran's statements and the possibility that those statements could demonstrate that the Veteran had undiagnosed sleep apnea during service. The Board notes that the February 2025 private medical opinion does not address the possibility of direct service connection as required by the Joint Motion, nor is it adequately addressed in any other examination or medical opinion. As discussed above, the February 2025 private opinion is incomplete with respect to secondary causation as well, but the issue has nonetheless been raised. The Board finds that remand is necessary to obtain a medical opinion addressing the Veteran's lay statements and whether or not those reports would be sufficient to support a diagnosis of sleep apnea during service with continuity following separation and therefore support direct service connection. Additionally, a complete VA medical opinion addressing secondary service connection based on causation is also required as that theory is raised by the record. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by a medical doctor, if possible, that has not previously examined the Veteran in conjunction with this claim for the purpose of providing a medical opinion. The examiner must review the claims file, including this Remand, September 2024 Joint Motion, December 2021 Board hearing testimony reporting gasping and headaches during service, service and VA medical records, and the February 2025 private medical opinion and should note that review in the report. Each opinion provided must be supported adequately by rationale, and the examiner should cite supporting evidence in the record or medical or scientific literature where appropriate. (a.) The examiner should opine whether it is as likely as not that the Veteran's obstructive sleep apnea began during service and has continued to the present. The examiner should consider the Veteran's lay statements at a December 2021 Board hearing, service medical records, and medical records after separation. The examiner should not rely solely on the lack of a formal diagnosis or complaints in service, but should instead opine whether it is as likely as not that the Veteran had undiagnosed obstructive sleep apnea during service based upon all available evidence. (b.) The examiner should opine whether it is as likely as not that the Veteran's obstructive sleep apnea was caused by or is the result of service-connected disabilities, to include posttraumatic stress disorder (PTSD). The examiner should discuss the February 2025 private medical opinion, and risk factors for obstructive sleep apnea. The examiner should discuss it is widely accepted and supported by medical literature that obstructive sleep apnea is caused by psychiatric disabilities. The examiner should apply any discussion to the Veteran's specific fact pattern and medical history, including what risk factors are present and, if possible, the likely etiology or causes of the Veteran's sleep apnea. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Hood, 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.