Citation Nr: 1319532 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 08-09 532 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for obstructive sleep apnea (OSA), including as secondary to service-connected posttraumatic stress disorder (PTSD) with major depressive disorder, service-connected low back strain with radiculopathy, PTSD medication, and/or insomnia. REPRESENTATION Veteran represented by: Michael R. Viterna, Esq. ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran had active service from July 1990 to January 1991 and from January 2003 to August 2004. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals that they do not contain any additional evidence relevant to the issue on appeal. FINDING OF FACT The preponderance of the probative evidence indicates that the Veteran's obstructive sleep apnea is not related to service or to a service-connected disability. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA must provide claimants with notice and assistance in substantiating claims for benefits. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The notice requirements apply to all five elements of a service connection claim, including Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on the claim for VA benefits. 38 U.S.C.A. § 5103(a); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that VA has satisfied its duty to notify. Specifically, an April 2007 letter, sent prior to the initial unfavorable decision issued in August 2007, advised the Veteran of the evidence and information necessary to substantiate his claim, including on the basis of secondary service connection. The same letter advised the Veteran of his and VA's respective responsibilities in obtaining the evidence and information. Letters dated October 2007 and June 2010 advised the Veteran of the evidence and information necessary to establish a disability rating and an effective date. While the October 2007 letter was issued after the initial August 2007 rating decision, the United States Court of Appeals for the Federal Circuit has held that VA could cure such a timing problem by readjudicating the Veteran's claim following a compliant VCAA notification letter. Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The United States Court of Appeals for Veterans Claims (Court) clarified that the issuance of a statement of the case could constitute a readjudication of the Veteran's claim. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). In the instant case, after the October 2007 letter was issued, the Veteran's claim was readjudicated in the January 2008 statement of the case and January 2011 supplemental statement of the case. Therefore, any defect with respect to the timing of the VCAA notice has been cured. Relevant to the duty to assist, the Veteran's service treatment records (STRs), service personnel records, VA treatment records, and VA examination reports have been obtained and considered. The Veteran has not identified any additional outstanding records that have not been requested or obtained. The Veteran was afforded VA examinations in April 2010 and May 2010 addressing a potential relationship between sleep apnea and his PTSD/PTSD medication. These examinations and opinions considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examinations and opinions regarding the issue decided herein has been met. The Board acknowledges that the Veteran has not been provided with a VA examination in conjunction with his claim that his sleep apnea is secondary to low back strain with radiculopathy. However, the Veteran has not submitted medical evidence suggesting a nexus between his sleep apnea and low back problems. He argued that his service-connected low back strain and radiculopathy affected his activity level, contributing to obesity, which in turn caused sleep apnea. However, the claims file contains no medical evidence suggesting this nexus. As treatment records fail to suggest that he developed OSA during service, and the medical evidence of record fails to suggest a nexus, VA's duty to provide an examination has not been triggered. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (a VA examination is only warranted when the medical evidence suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits). The Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claims. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claims. II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability, in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.304. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.310(a). 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). When there is an approximate balance of evidence for and against the issue, all reasonable doubt will be resolved in the Veteran's favor. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that his service-connected PTSD and depression, PTSD medication, insomnia, and service-connected low back strain with radiculopathy all contributed to weight gain and obesity, which in turn caused OSA. Thus, he contends service connection is warranted on a secondary basis to these disabilities. The Veteran clearly has a current disability of OSA. VA treatment records show it was diagnosed by sleep study in April 2007, and treated thereafter with a CPAP machine. The Veteran has not actually contended that OSA arose during service. STRs are negative for any complaints, treatment, or diagnoses referable to sleep apnea. The Veteran himself stated that his symptoms began after he separated from service. A VA treatment record dated April 2005 indicates that sleep apnea was suspected and the earliest report of snoring was in October 2005. His wife, to whom he was married before his second period of active service, attested in her June 2008 lay statement that he never snored before his weight gain from PTSD, depression, and back injury. There is no medical evidence suggesting a nexus between the current disability and service. Direct service connection may not be granted without evidence of in-service incurrence or aggravation of a disease or injury. The Board finds no evidence of in-service incurrence or aggravation of sleep apnea and the Veteran has not contended that there was any in-service cause or treatment of this disability. Therefore, his service connection claim must fail on the basis of direct service connection. Secondary service connection requires evidence sufficient to show that the current disability was either proximately caused by or proximately aggravated by a service-connected disability. The Board notes at the outset that the Veteran is not service-connected for insomnia. Therefore the Veteran's claim for secondary service connection for OSA under this theory must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). STRs show that in the early 1990s the Veteran's weight was typically 185 pounds, and from the late 1990s through at least June 2003 it stayed around 215 pounds. In April 2003 while deployed in Iraq he sustained an injury to his low back, for which complaints and treatment continued through the end of service. In July 2003 his weight had increased to 228 pounds, and by August it was at 237 pounds. In December 2003 it was 258 pounds and the Veteran was exempted from mandatory PT and marching due to his low back pain. In February 2004 he was restricted from prolonged walking, marching, standing or sitting due to his low back. It was noted that he had been unable to fully participate in physical fitness training for the last year. By March 2004 he weight had increased to 279 pounds, and by June 2004 it was 285 pounds. In summary, after injuring his low back, ceasing full physical training, and returning from deployment, the Veteran steadily gained 70 pounds over a one-year period. Relevant VA treatment records show that in August 2004, the same month as his separation from service, the Veteran was 74 inches tall, weighed 291 pounds, and was diagnosed with obesity. The evidence shows he was taking Prozac/ Fluoxetine in August 2004 for depression. In December 2004 he was noted to be obese, and in February 2005 Mirtazapine was added for depression/PTSD. In July 2005 Lorazepam and Prazosin had been added for anxiety and PTSD symptoms and he was noted to be morbidly obese. In April 2005 he attempted pulse oximetry at home but he was unable to use it because his severe PTSD hyperarousal prevented him from sleeping with the finger tab. He did not report this to the pulmonary staff at the time and the test was interpreted as negative for OSA. In October 2005 he reported that his wife told him he was snoring loudly. In March 2006 he and his wife reported worsening breathing problems while sleeping, snoring, and daytime fatigue over the last two months. His wife reported observing long pauses between breaths when the Veteran was asleep. He was still taking Fluoxetine, Mirtazapine, Lorazepam, and Prazosin at that time. The nurse made a note to rule out sleep-disordered breathing and schedule another sleep study for possible OSA. His Fluoxetine and Prazosin were increased close to this time. In May 2006 he weighed 316 pounds and said he wanted to "lose weight in order to sleep better/snore less at night." He reported that his "wife used to complain about snoring/gasping but not over the last month." Regarding the Veteran's daytime sleepiness, the VA pulmonologist assessed that the evidence was not convincing for sleep apnea based on pulse oximetry and Epworth score and the Veteran agreed it was likely due to multiple psychiatric medications. If complaints of snoring/gasping persisted, he would pursue a full polysomnogram. The Veteran was encouraged to lose weight and exercise. In June 2006 the Veteran had a VA nutrition education consult, seeking weight reduction/lipid lowering information. The dietician noted that he weighed 319 pounds, and his weight had been fairly stable for the last two months. His exercise activity was limited secondary to back pain. She noted his list of medications but did not comment on any possible relationship to weight gain. He was prescribed decreased portion sizes, more regular meals, increased activity as tolerated, and increased intake of fruits and vegetables. In June 2006 Lexapro was added and Fluoxetine was tapered off. In August 2006 the Veteran complained of continued fatigue, daytime sleepiness, snoring, and witnessed apnea by his wife. His chronic back pain had increased somewhat with recent weight gain, and his current weight was 322 pounds. He was given a differential diagnosis of OSA and he was to continue working on diet, exercise, and weight loss. Lexapro was increased. In January 2007 the Veteran complained of worsening snoring and daytime somnolence. He and his wife thought that his sleep problems, including the PTSD symptom of nightmares, had worsened since adding morning Prazosin. His weight was 334 pounds. The VA physician assessed that it was unclear whether the sleep disturbance was OSA or a combination of medication effects and PTSD symptoms, and referred the Veteran for a full sleep study. The study took place in March 2007 and April 2007 and resulted in a diagnosis of moderate OSA. A CPAP device was ordered and he was still using the device at the May 2010 VA examination. In March 2007 the Veteran weighed 326 pounds and felt he had gained weight "more so after starting meds on PTSD." By July 2007 his psychiatric medications were Prazosin, Escitalopram, Lamotrigine, and Quetiapine. His weight was down to 322 pounds. In his March 2008 substantive appeal, the Veteran stated that his low back strain with radiculopathy led to his weight gain and is one of the reasons he cannot exercise on a regular basis. He also asserted that his PTSD medications (including sleeping aids) have the side effect of weight gain by aggravating and causing his OSA. He stated that prior to his PTSD, depression, and insomnia, he never snored. His snoring was brought to his attention by his wife in 2006. He stated that he has been told by VA doctors that it is more likely than not that his sleep apnea is related to his PTSD and depression; however, there is no such statement by a physician in the claims file. He also pointed out that he did not have any psychiatric or sleep issues in service and his sleep apnea did not appear until the onset of the psychiatric issues. His wife, to whom he was married before his second period of active service, attested in her June 2008 lay statement that he never snored before his weight gain from PTSD, depression, and back injury. The Veteran also submitted treatise evidence that included articles discussing a link between sleep apnea and depression, and showing that the risk factors for OSA include obesity, weight gain, being male, middle age, sedatives and sleeping aids. The Veteran told the April 2010 VA PTSD examiner that after he gets upset he likes to eat. He was able to do yard work. The examiner stated that the Veteran's contention that his sleep apnea is secondary to his PTSD cannot be resolved without mere speculation; however, sleep apnea is not a diagnosed symptom of PTSD listed in the DSM-IV. Therefore, the examiner opined, the sleep apnea cannot be directly linked per symptomatology to his PTSD. The Veteran told the May 2010 VA respiratory examiner that he was currently able to exercise 60 to 90 minutes, 3 times per week. His exercise consisted of walking up and down stairs and on level ground. He did this without problems. He described an approximate 120 pound weight gain since he was in the military. He had lost 50 pounds in the past year through a weight reduction diet and increased physical activity. The examiner stated that he was currently taking Sertraline, Lorazepam, and Prazosin. After consulting the PDR, the examiner determined that they do not cause or aggravate sleep apnea. Therefore he opined that the sleep apnea was not caused by, a result of, or aggravated by the Veteran's PTSD medications. The VA respiratory examiner opined that it was less likely than not that the Veteran's sleep apnea was caused by, a result of, or related to the Veteran's PTSD, "even indirectly." His rationale was that obesity is one of several risk factors for sleep apnea, but that it does not itself cause sleep apnea. He pointed out that many people who are not overweight also have sleep apnea. After a detailed discussion of the risk factors, the examiner stated: "[i]t is therefore moot...whether his PTSD, depression, and insomnia have led to some of his weight because the weight itself would not be the cause of the sleep apnea." In summary, after his low back injury in service, the Veteran gained 70 pounds before his separation from the military. Following separation in August 2004, he gained another 35 pounds over the course of a few years. He has since lost about 50 pounds through diet and exercise. The Board notes that obesity is not a service-connected disability. He exhibited OSA symptoms within a year of separating from service but physicians did not diagnose the condition until April 2007. The Veteran and his wife have clearly stated that his OSA symptoms began after service. Between separation from service and his OSA diagnosis, he was treated for PTSD with various medications. The April 2010 VA examiner opined that the Veteran's OSA was not caused by, a result of, or aggravated by his PTSD or PTSD medication. The May 2010 VA examiner opined that neither the Veteran's weight gain nor obesity caused his OSA. He also opined that the PTSD or medications which may have contributed to the weight gain did not cause his OSA, even indirectly. Therefore, both medical opinions of record weigh against the Veteran's claim that his OSA was caused or aggravated by these disabilities. The Board notes that these medical opinions are also consistent with the treatise evidence submitted by the Veteran. The treatise evidence identified risk factors, including depression and obesity, and the May 2010 VA examiner specifically discussed risk factors for OSA but drew the distinction between a risk factor and a cause. The treatise evidence did not actually state that the risk factors, including obesity, directly cause OSA. The Court has held that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Both of these medical opinions draw clear conclusions and are supported by a reasoned rationale connecting the conclusions to supporting data. Therefore the Board accords them probative weight. There is no medical opinion evidence directly addressing whether the low back strain with radiculopathy caused or aggravated the Veteran's OSA, as he contended. However, the May 2010 VA examiner's probative opinion that weight itself would not be the cause of the sleep apnea also applies to this theory. The Veteran's assertion is that the weight gain following his restricted activity due to low back injury is what actually caused or aggravated the OSA. Therefore, this chain reaction theory is the same as that proposed for the PTSD and PTSD medication. Thus, there is no medical evidence suggesting a nexus between the Veteran's OSA and PTSD, PTSD medications, or low back strain with radiculopathy. The Veteran contends on his own behalf that his OSA was proximately caused or proximately aggravated by his PTSD, PTSD medications, and/or low back strain with radiculopathy. A lay person is competent to report on that of which he has personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran and his wife are competent to report the onset and recurrence symptoms and treatment they experienced and observed. In its capacity as a finder of fact, the Board finds the Veteran and his wife are also credible. Their reports regarding the onset of OSA symptoms after service and the chronicity of low back injury, PTSD diagnosis and medications, and weight gain are consistent internally, with one another, and with the medical evidence of record. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), in this case the question of whether OSA is caused or aggravated by PTSD, PTSD medication, or low back strain falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Veteran and his wife are not shown to possess the medical knowledge to attribute OSA to his service-connected disabilities. While the Veteran and his wife have competently and credibly described his symptoms, they are not competent to opine on such a complex medical question as the etiology of his OSA. As such, the Board accords significantly more weight to the opinions of the VA examiners, who concluded the Veteran's OSA is not related to his service-connected disabilities or to any weight gain they may have caused. The preponderance of the probative evidence is against the claim and service connection for obstructive sleep apnea is denied. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for OSA. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for obstructive sleep apnea, to include as secondary to a service-connected disability, is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs