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Jun 28 11 5:38 PM
Jul 2 11 10:42 PM
Citation Nr: 0102100
Decision Date: 01/25/01 Archive Date: 01/31/01
DOCKET NO. 99-22 315 ) DATE
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Entitlement to service connection for sleep apnea as
secondary to service-connected post-traumatic stress disorder
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Richard A. Cohn, Associate Counsel
The veteran served on active duty from April 1970 to December
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an August 1999 rating decision of the
Department of Veterans Affairs (VA) Regional Office in St.
Louis, Missouri (RO) which denied service connection for
sleep apnea as secondary to service-connected PTSD.
FINDINGS OF FACT
1. The record includes all evidence necessary for the
equitable disposition of this appeal.
2. There is competent medical evidence linking current sleep
apnea to the veteran's service-connected PTSD.
CONCLUSION OF LAW
The veteran's sleep apnea was aggravated by his service-
connected PTSD. Veterans Claims Assistance Act of 2000, Pub.
L. No. 106-475, 114 Stat. 2096 (2000); 38 U.S.C.A. § 5107,
38 C.F.R. § 3.310(a) (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran attributes sleep apnea to his service-connected
PTSD. The veteran does not contend that he incurred or
aggravated sleep apnea during service and there is no
evidence of sleep apnea or other sleep disorder in the
veteran's service medical records SMRs.
Procedurally, this appeal is developed fully and ready for
Board adjudication. The RO has verified the veteran's period
of service; there is no issue as to the substantial
completeness of the veteran's application for VA benefits;
the veteran has undergone VA examination pursuant to the
application; the RO has requested and associated with the
claims file all available service and postservice medical
records pertinent to this appeal; VA is unaware of other
unrequested records pertinent to this appeal, and; the
evidence is sufficient to permit the Board to proceed with
appellate review. See Veterans Claims Assistance Act of
2000, Pub. L. No. 106-475, 114 Stat. 2096, (2000).
A veteran may be entitled to service connection for a
disability under either a direct or secondary analysis.
Direct service connection is warranted for disability
resulting from disease or injury incurred or aggravated in
service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. §
3.303 (2000). Secondary service connection is warranted both
for a disability caused by a service-connected disorder and
for a disability aggravated by a service-connected disorder.
38 C.F.R. § 3.310(a) (2000). In the latter case,
compensation is limited to the extent to which the service-
connected disorder increased the severity of the secondary
disorder. Allen v. Brown, 7 Vet. App. 439, 448 (1995); Jones
(Wayne) v. Brown, 7 Vet. App. 134, 136-37 (1994). A service-
connected secondary disorder becomes part of the original
disorder. 38 C.F.R. § 3.310(a).
The veteran is a decorated former Army combat soldier whose
PTSD has been service-connected since July 1995. SMRs
include no evidence of a sleep disorder in service and the
veteran claims none.
VA medical records confirm that the veteran underwent sleep
studies in February and October 1998 from which he was
diagnosed with sleep apnea. A VA psychiatric progress note
from February 1999 briefly reviewed the studies' findings and
applicable research and concluded that PTSD and its treatment
"in all probability has aggravated the obstructive sleep
apnea." The note further states that "it is certainly as
likely as not that this veteran's sleep apnea is directly
related to his PTSD." The VA physician who examined the
veteran in July 1999 identified two likely causes of his
sleep apnea: enlarged tonsillar tissue and obesity. The
physician found no etiological connection between PTSD and
enlarged tonsillar tissue. However, he acknowledged that
"an argument could be made" linking the veteran's obesity
with PTSD although the veteran's medical records did not
include another medical opinion to that effect.
In the Board's judgment the record presents adequate evidence
upon which to base a finding that the veteran's PTSD
aggravated his sleep apnea. The opinion expressed in the
February 1999 progress note is neither ambiguous nor
equivocal on that point. The July 1999 examination report is
more tentative -- finding only a medical possibility of
attenuated causality under a different rationale.
Nevertheless, the July 1999 opinion does not refute the
February 1999 opinion, and it is well established that VA
itself may not refute expert medical conclusions in the
record with its own unsubstantiated medical conclusions.
Colvin v. Derwinski, 1 Vet. App. 171, 175. (1991).
Therefore, absent medical evidence actually denying a causal
linkage between PTSD and sleep apnea in this case, the Board
reads the two opinions together as providing, at minimum,
evidentiary equipoise which must be resolved in the veteran's
favor. See 38 U.S.C.A. § 5107(b). Accordingly, the Board is
constrained to find that service connection for sleep apnea
is warranted here under a secondary analysis. See 38 C.F.R.
Service connection for sleep apnea is granted secondary to
WARREN W. RICE, JR.
Member, Board of Veterans' Appeals
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