Citation Nr: 18144713 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 12-20 072 DATE: October 25, 2018 ORDER Entitlement to service connection for sleep apnea, to include as secondary to service-connected sinusitis, is denied. FINDING OF FACT The most probative evidence indicates the Veteran’s sleep apnea is not related to service, or caused or aggravated by her service-connected sinusitis. CONCLUSION OF LAW The criteria for establishing service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1981 to August 2002. This matter comes before the Board of Veterans’ Appeals (Board) from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In an April 2015 decision, the Board denied the Veteran’s claim for service connection for sleep apnea, and the Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court). In June 2016, pursuant to a Joint Motion for Remand (JMR), the Court vacated, in part, the April 2015 decision and returned it to the Board for further consideration consistent with the JMR. In September 2016 and July 2017, the Board remanded for further development. 1. Entitlement to service connection for sleep apnea Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disability, or for the degree of disability resulting from aggravation of a nonservice-connected disability. 38 C.F.R. § 3.310(a). See also Allen v. Brown, 7 Vet. App. 439 (1995). However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice- connected disease or injury. 38 C.F.R. § 3.310. The Veteran claims her sleep apnea began in service or, alternatively, is related to her service-connected sinusitis. She contends that her sleep apnea symptoms first started during service, that she reported snoring at the time of her retirement from service in 2002, and that fellow soldiers told her she snores. As an initial matter, the Veteran has a current diagnosis of obstructive sleep apnea. See August 2017 VA examination. The question for the Board is whether the Veteran’s current sleep apnea is related to service or her service-connected sinusitis. The Veteran’s service treatment records (STRs) do not document complaints of or treatment for snoring, apneic episodes or diagnosis of sleep apnea. In an October 1995 treatment record, the Veteran reported no general health problems. In a December 1998 report of medical history, the Veteran explicitly denied frequent trouble sleeping. A March 2001 questionnaire in response to musculoskeletal problems noted the Veteran responding affirmatively to moderate difficulty sleeping. In a February 2002 service examination, the examiner noted multiple conditions that did not include sleep-related issues, and in the accompanying February 2002 report of medical history, the Veteran explicitly denied trouble sleeping and did not list sleep problems among 28 conditions listed. Although she mentioned shortness of breath, she explained that this referred to clogged nasal passages and breathing problems climbing stairs. In the August 2002 general medical VA examination conducted prior to her retirement from service, the Veteran denied shortness of breath and there is no evidence of reported snoring, apneic episodes or sleep problems; further, the physical examination was negative for any findings pertaining to a sleep disorder. A January 2003 VA neurological examination did not indicate sleep problems. The first medical evidence of a sleep problem is an August 2004 VA treatment record, which noted a complaint of recurrent awakening in the night and referral to a sleep clinic; however, a prior history of sleep problems was not listed as a problem condition. In an October 2004 VA pre-surgery anesthesiology screen, the Veteran denied sleep apnea, difficulty breathing and shortness of breath. A medical history of sleep apnea is first noted in a November 2004 treatment record. A June 2005 VA polysomnogram revealed mild obstructive sleep apnea. As the competent evidence of record does not reflect a diagnosis of sleep apnea during service, competent evidence linking sleep apnea with service or her service-connected sinusitis is needed to support the claim. On this question, the Board finds the most probative evidence is against the claim. The Veteran underwent a VA examination in January 2009 relating to her service connection claim for sinusitis. At the examination, the Veteran reported she was diagnosed with obstructive sleep apnea in 2002 and used a CPAP machine. Addressing whether sleep apnea was secondary to sinusitis, the examiner opined the Veteran’s sleep apnea was less likely than not caused by or a result of her service-connected allergic rhinitis/sinusitis, concluding it was a known medical fact that obstructive sleep apnea is not a diagnosis whose etiology is related to allergies/sinus infections. Because the examiner did not address direct service connection, the Board remanded for an addendum opinion. In the August 2017 VA addendum, after examination of the Veteran and review of the claims file, the examiner opined that the Veteran’s currently diagnosed obstructive sleep apnea was less likely than not incurred in or caused by service. He concluded the Veteran was not diagnosed with sleep apnea until June 2005, and there was no objective evidence in the claims file of the onset of sleep apnea while the Veteran was in service or that it was causally related to service. During the examination, the Veteran reported her sleep apnea started during service, that she snored when she sleeps and has snored as long as she remembers, that she was diagnosed with obstructive sleep apnea in 2005, used a CPAP machine, and had symptoms of daytime somnolence and trouble focusing. A VA addendum opinion was obtained in January 2018 to address the Veteran’s lay statement that she began snoring in service and reported difficulty sleeping in service. The VA examiner opined it was less likely than not the Veteran’s sleep apnea had its onset in service or was causally related to service. The examiner indicated she reviewed the Veteran’s claims file and lay statements; however, she found no records indicating complaints of or evaluation for snoring during service, including the June 1983 report of medical examination, March 1989 medical examination, December 1998 report of medical history and February 2002 retirement report of medical history. The examiner stated the earliest post-service mention of a snoring complaint was in August 2004, which notes a history of snoring and referral to a sleep clinic to rule out sleep apnea, and that the onset of the history of snoring was not noted in the clinic note. Therefore, the examiner concluded a nexus had not been established. In April 2018, a VA medical opinion was again obtained. After a comprehensive review of the claims file that included the Veteran’s lay statements, and review of the pertinent medical literature, the examiner provided negative direct and secondary service connection opinions. Regarding direct service connection, the examiner opined she was in complete agreement with the January 2018 VA examiner’s opinion that it was less likely than not that the Veteran’s sleep apnea had its onset in service or was causally related to service. Regarding secondary service connection, the examiner opined it was less likely than not that the Veteran’s service-connected sinusitis caused or aggravated (worsened beyond the natural progress of the disease) her obstructive sleep apnea. The examiner explained that current medical literature indicated the etiology and pathophysiology of obstructive sleep apnea is more than changes in sleep patterns, explaining that during sleep, reduced upper airway inspiratory muscle tone and diminished reflect dilation lead to airway narrowing, with those effects most pronounced in REM sleep, leading to increased obstructive events in predisposed patients, resulting in “one or more pauses in breathing.” She stated it is an autonomic nervous system dysfunction that results in shallow breaths during the sleep cycle. She further explained that, in contrast, sinusitis is inflammation of the mucosal lining of the paranasal sinuses and, patho-physiologically, this localized inflammatory process of the nasal passages is not related to, cause for or an aggravating factor for the dysfunction of the autonomic nervous system. She concluded that for these reasons, as well as the different etiology and pathophysiology of sinusitis and sleep apnea, it is less likely than not that sinusitis causes or aggravates obstructive sleep apnea or its etiology and pathophysiology thereof. Furthermore, she stated current otorhinolaryngology and hypopnea literature agree that obstructive sleep apnea is a non-rhinosinusitis illness as compared to sinusitis, which is a rhinosinusitis condition, and she concluded obstructive sleep apnea and sinusitis are independent and separate conditions, and the comorbidity of sinusitis (to include rhinosinusitis) and obstructive sleep apnea are independent and separate factors seen in a population with reduced sleep quality. Upon review of the record, the Board finds the most probative evidence is against the claim. The Board finds the combined VA examiners’ opinions highly probative and entitled to great weight. The examiners reviewed the claims file, including the Veteran’s STRS, lay statements and medical history; examined the relevant facts; and provided a reasoned rationale for the conclusion reached that is consistent with the evidence, including citing to medical literature to support and distinguish sleep apnea from mere changes in sleep patterns. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Accordingly, the combined opinions are probative and persuasive. There is no medical opinion of record to the contrary. The Board acknowledges the Veteran’s assertions that her sleep apnea began during service, that fellow soldiers told her she snored, and that she reported snoring problems during her February 2002 retirement examination. However, those assertions are not supported by the evidence of record, including her STRs and retirement examination report, which document no evidence of snoring, a sleep disorder, or apneic episodes during service. Also, while the Veteran reported moderate difficulty sleeping in a May 2001 STR, the document pertained to musculoskeletal concerns and is devoid of complaints concerning snoring or apneic episodes. The Board finds her denial of sleep problems on her retirement examination to be more persuasive and probative than her current assertions. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran’s testimony simply because the Veteran is an interested party; personal interest may, however, affect the credibility of the evidence). In any event, the Veteran, as a lay person, is not competent to link the sleep apnea diagnosed post service with complaints during service, as such matter requires medical expertise to determine. 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). The Board finds the opinions of the VA examiners to be more probative than the Veteran’s lay assertions. In summary, the preponderance of competent and probative evidence is against finding that the Veteran’s current obstructive sleep apnea was incurred in service or is caused or aggravated by her service-connected sinusitis. Accordingly, entitlement to service connection for sleep apnea is denied. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, the doctrine is not for application. See U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. C. Birder, Associate Counsel