Citation Nr: 1800733 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 14-12 781 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for sleep apnea, to include as secondary to service-connected status-post sulfur lung poisoning with residual reactive airway disease, and/or service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J. George, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1982 to February 1983, November 1983 to November 1987, May 2002 to February 2003, July 2006 to September 2007 and from February 2009 to March 2010. This matter comes before the Board of Veterans' Appeals (Board) from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. This matter was previously before the Board in December 2015 and October 2016, at which time the Board remanded the claim for further development. The Board finds there has been substantial compliance with these remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). FINDINGS OF FACT The most probative evidence of record indicates that the Veteran's sleep apnea is not related to service or service-connected reactive airway disease or PTSD. CONCLUSION OF LAW The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Preliminary Matters The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott, supra (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). 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 ; 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). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service or when evidence establishes a disease diagnosed after discharge was incurred in service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 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. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 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). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.R.F. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran is claiming that his sleep apnea is related to service or was caused or aggravated by his service-connected PTSD and status post sulfur lung poisoning with residual reactive airway disease. Briefly, for background, the Veteran's sulfur lung poisoning with residual reactive airway disease disability arose from a March 2009 training exercise. As per a report in a service treatment record, during the exercise, the Veteran was to simulate an unconscious casualty in a vehicle. However, thick smoke filled the vehicle the Veteran was in, and the Veteran's eyes, nose, and throat were burned. He began coughing and could not breathe. The Veteran has a current diagnosis of sleep apnea and there is no dispute that the events the Veteran claims led to his sleep apnea did occur. Thus, the Board need only resolve whether the Veteran's sleep apnea is related to service or was caused or aggravated by his sulfur lung poisoning or PTSD. In an August 2011 statement in support of claim, the Veteran reported having shortness of breath and restricted breathing when lying down or sleeping. He also noted snoring that went from a small rasp to a louder struggle that prevented his former spouse from sleeping. Eventually, he began to sleep in another bedroom. As a result, he would awake feeling tired. He also believes that the smoke inhalation caused his nasal passageway to become inflamed leading to restricted breathing, especially when going to bed. He also claims that he has experienced mental and physical stress because he awakes at night and that lack of sleep has greatly impaired his work and functioning. A VA treatment record from October 2011 notes an impression of severe obstructive sleep apnea with significant oxygen desaturations with severe prolonged episodes of desaturation during what was likely rapid eye movement (REM) sleep. Review of EMR indicates patient has a history of reactive airway disease which could be contributing to nocturnal desaturations. In June 2012, the Veteran was afforded a VA examination of his sleep apnea. At that time, the Veteran reported loud snoring and witnessed apneas during sleep. The examiner opined that it was less likely than not that sleep apnea was due to or the result of the Veteran's sulfur lung poisoning. In support of the opinion, the examiner noted that, even though both reactive airway disease and sleep apnea can both cause oxygen desaturation, sleep apnea affects the upper airway, while reactive airway disease affects the lower respiratory track at the level of the bronchi. The Board in December 2015 remanded for a new medical opinion. While finding that the examiner addressed whether the Veteran's sleep apnea was caused by his reactive airway disease, the examiner had not addressed the issue of whether the sleep apnea was caused by the reactive airway disease. The Board also found that the examiner had failed to consider lay statements, as outlined above, from the Veteran and family members. A second medical opinion was obtained in April 2016. At that time, the examiner opined that sleep apnea was less likely than not related to service because records are silent for a diagnosis of sleep apnea during service. The examiner also opined that sleep apnea was less likely than not caused by reactive airway disease or PTSD. The examiner noted the details of the Veteran's March 2009 smoke inhalation when he sustained about 5 minutes of exposure to hexachloroethane and zinc chloride. The examiner then noted that sleep apnea is caused by the collapse of the oropharyngeal airway during sleep while respiratory effort continues. This is collapse is due to weight gain. By contrast, there is no objective medical evidence that smoke inhalation or reactive airway disease cause sleep apnea. Therefore, sleep apnea was less likely than not caused or aggravated by the Veteran's reactive airway disease. In October 2016, the claims were remanded again as the examiner in opining as to a medical nexus on a direct basis failed to address the lay statements regarding the Veteran's loud snoring and poor sleep patterns and premised her opinion solely on a lack of diagnosis during service. Additionally, the examiner failed to provide an aggravation opinion regarding PTSD or explain why sleep apnea was not caused by PTSD. The Board found no fault with the medical opinion to the extent it addressed whether sleep apnea was caused or aggravated by reactive airway disease. Therefore, an October 2016 medical opinion was obtained. As to service connection on a direct basis, the examiner opined that the Veteran's sleep apnea was less likely than not related to service. The examiner noted again that there was not a diagnosis during service. Further, the examiner noted that the reported loud snoring. Labored air intake with running, swimming, and cold weather was said not caused by sleep apnea, presumably because such labored breathing did not occur during sleep. Other reports of labored breathing were also noted, but the statements did not indicate under what conditions this labored breathing occurred. Because sleep apnea is caused by a structural dysfunction in the oropharyngeal airway during sleep, the examiner stated that a sleep study was necessary to determine if these symptoms were indicative of sleep apnea. Thus, sleep apnea was less likely than not related to service. As to secondary service connection, the examiner opined that the Veteran's sleep apnea was less likely than not caused or aggravated by PTSD. She described sleep apnea as the recurrent collapse of the pharyngeal airway during sleep resulting in substantially reduced or complete cessation of airflow despite ongoing breathing efforts caused by a structural dysfunction in the oropharyngeal airway. This leads to intermittent disturbances of gas exchange disturbing sleep. She also noted that PTSD has been described as "the complex somatic cognitive, affective, and behavioral effects of psychological trauma." While the Veteran has both of these disease now, it does not imply that one of these caused sleep apnea, and there was no compelling data that would reasonably lead to an association of cause of effect of sleep apnea and PTSD. Therefore, sleep apnea was less likely than not caused by PTSD. Finally, the examiner opined that sleep apnea was less likely than not aggravated by reactive airway disease or PTSD. The examiner provided the same rationale used for her causation opinion. The Board notes that the Veteran and other laypersons are competent to report symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). However, they are not typically competent to connect those symptoms to a particular diagnosis. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Thus, given the medical expertise needed regarding the relationship of a disorder to service or whether a disorder was caused or aggravated by a service-connected disability, a medical opinion will usually be the most persuasive evidence of record. That is certainly true in this case, where the opinions provided by the examiner in April 2016 with respect to the connection between sleep apnea and reactive airway disease and in October 2016 are well-reasoned, comprehensive, and clearly reflect detailed consideration of the entire record. 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"). As a result, the Board accepts the October 2016 examiner's conclusions that the Veteran's sleep apnea is not related to service. As the examiner stated, the Veteran's reported symptoms seemed to have been signs of another respiratory disease, in this case reactive airway disease. Thus, without a contemporaneous sleep study, or a detailed lay account of multiple symptoms definitively associated with sleep apnea rather than reactive airway disease, the Board finds the October 2016 examiner's conclusion on a direct theory of service connection very persuasive. The Board also finds the April 2016 and October 2016 opinions persuasive regarding secondary service connection for reactive airway disease and PTSD respectively. The examiner described clearly the processes of sleep apnea and PTSD as well as the pertinent facts and then concluded that the two are not related. The Board's reading of the April 2016 opinion on this point is also informed by the examiner's description of reactive airway disease in the June 2012 opinion, in which she differentiated between the etiologies of sleep apnea, which affects the upper respiratory track, from reactive airway disease, which affects the bronchi. Thus, the Board finds that the Veteran's sleep apnea is not related to service and was not caused or aggravated by reactive airway disease or PTSD. Therefore, the Board finds that service connection for sleep apnea is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the probative evidence is against the Veteran's claim. As such, that doctrine is not applicable, and this claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Entitlement to service connection for sleep apnea is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs