Citation Nr: 18147270 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 16-25 497 DATE: November 2, 2018 ORDER Entitlement to service connection for obstructive sleep apnea, to include as secondary to posttraumatic stress disorder with major depressive disorder is denied. FINDING OF FACT The preponderance of the probative evidence is against finding that obstructive sleep apnea is related to active service, and against finding that it is proximately due to or aggravated by a posttraumatic stress disorder with major depressive disorder. CONCLUSION OF LAW Obstructive sleep apnea was not incurred during service and is not secondary to service-connected posttraumatic stress disorder with major depressive disorder. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1971 to February 1973. In May 2016, VA granted entitlement to service connection for bilateral hearing loss and assigned a noncompensable evaluation. The Veteran disagreed with the decision and a statement of the case was furnished in October 2016. The Veteran did not submit a timely substantive appeal and this issue is not for consideration Entitlement to service connection for obstructive sleep apnea, to include as secondary to posttraumatic stress disorder with major depressive disorder The Veteran contends that service connection for obstructive sleep apnea is warranted on either a direct or a secondary basis. In his November 2013 notice of disagreement, he reported that sleep apnea was first manifested in basic training in 1971 following sadistic treatment by his drill sergeant. After basic training he reportedly was exposed to diesel fumes and other chemicals. He further argues that sleep apnea is secondary to his service-connected posttraumatic stress disorder with major depression. In his June 2016 VA Form 9, the Veteran reported that he never went to sick call. After separation, he had alcohol and substance abuse problems and suffered from posttraumatic stress disorder and irregular sleeping patterns. He further stated that several medical professionals have said it is as likely as not that his sleep apnea and posttraumatic stress disorder are related conditions. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted on a secondary basis for a disability that is proximately due to a service-connected condition. 38 C.F.R. § 3.310(a). Service connection is also possible when a service-connected condition has aggravated a claimed condition, but compensation is only payable for the degree of additional disability attributable to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). In October 2006, VA amended 38 C.F.R. § 3.310 to incorporate the decision in Allen except that VA will not concede aggravation unless there is medical evidence showing the baseline level of the disability before its aggravation by the service-connected disability. 38 C.F.R. § 3.310(b). In December 2010, the Veteran underwent a polysomnography study which showed moderate obstructive sleep apnea/hypopnea syndrome with oxygen desaturation. Medical evidence clearly shows a current disability. Hence, the question for the Board is whether it is related to active service or service-connected disability. Service treatment records are negative for any complaints or findings of sleep apnea. At his separation examination in December 1972, no relevant abnormalities were noted and the Veteran was described as a “healthy young male”. The Veteran underwent a VA sleep apnea examination in July 2015. He reported the condition began in 1971 during basic training due to sleep deprivation, and physical and mental abuse. In August 2015, the examiner opined that the condition was less likely than not proximately due to or the result of the service-connected condition. In support, the examiner stated that medical literature does not establish a causal relationship of posttraumatic stress disorder directly resulting in obstructive sleep apnea. The risk factors for sleep apnea include old age (natural or premature), brain injury (temporal or permanent), decreased muscle tone, increased soft tissue around the airway, structural features that give rise to a narrowed airway, and drugs or alcohol. In April 2016, VA obtained an addendum opinion. Following review of the virtual folder and VA records, the examiner concurred with the August 2015 opinion. She noted that obstructive sleep apnea was caused by a mechanical obstruction to the posterior airway or back of throat while someone is asleep. It is most commonly associated with obesity which the Veteran has (Body Mass Index of 29). It is not a disease of the lungs in which inhalation of toxic substances might be expected to cause problems. It is purely a structural problem and caused by physical oropharyngeal anatomical effects not from mental health conditions. She further stated that the current medical literature was insufficient to establish a nexus relationship between posttraumatic stress disorder causing sleep apnea and indicated that on review of submitted articles in the Veterans Benefits Management System (VBMS), “probably contributes” is not definite causal or aggravating. Regarding aggravation, the examiner provided a negative opinion noting that sleep apnea was diagnosed in 2010, treated with CPAP and stable, and there was no objective medical evidence of aggravation beyond normal progression. As concerns direct service connection and with consideration of the lay statements, the examiner also provided a negative opinion. She noted no documented sleep apnea in service or within one year of discharge. Further, the disorder was not diagnosed until 38 years after service and there was no nexus. In making this determination, she noted that there were no medical records from 1979 to 2007 describing a chronicity of sleep apnea condition. The examiner also indicated that there was insufficient evidence to demonstrate his sleep apnea was caused by environmental exposures encountered during service. The VA opinions are based on a review of the record and supported by adequate rationale. Thus, they are considered highly probative. As discussed, there is no objective evidence of sleep apnea during service and the condition was not diagnosed until almost four decades after discharge. Notwithstanding, the Veteran is competent to report symptoms beginning during active service. Layno v Brown, 6 Vet. App. 465, 470 (1994). The Board acknowledges his statements that he did not seek medical treatment in service because of his drill sergeant and the consequences of going to sick call. Review of service treatment records, however, shows that the Veteran was seen on sick call on several occasions for various issues, such as right eye stye, a sore throat, and sprained finger. Thus, his statements in this regard are not considered credible. The Board also acknowledges the lay statements of record, to include from his sister and ex-wife, indicating that he had sleep problems such as excessive snoring after discharge. Again, lay persons are competent to report this information. Layno. They are not, however, competent to diagnose sleep apnea or provide an opinion as to its etiology. These statements are insufficient to establish a medical nexus. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Board notes that the Veteran’s sister is also a nurse and she stated that “all the medical issues he is currently going through is a result of his military service.” To the extent this was offered as an etiology opinion, the Board does not find it sufficient to outweigh the well-reasoned VA opinions of record. In support of his claim for secondary service connection, the Veteran submitted multiple articles and studies suggesting a relationship between posttraumatic stress disorder and sleep apnea, and indicating a higher incidence of sleep apnea in military personnel. This evidence, however, is general in nature and not specific to the Veteran’s case. That is, it does not consider the Veteran’s specific circumstances. Hence, it is not sufficient to establish a medical nexus. See Wallin v. West, 11 Vet. App. 509, 514 (1998) (treatise evidence cannot simply provide speculative generic statements not relevant to the veteran’s claim, but, “standing alone,” must include “generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion” (citing Sacks v. West, 11 Vet. App. 314, 317 (1998))). The Board has also considered the copies of prior Board decisions submitted by the Veteran. Board decisions are nonprecedential. 38 C.F.R. § 20.1303 (Although the Board strives for consistency in issuing its decisions, previously issued Board decisions will be considered binding only regarding the specific case decided. Prior decisions in other appeals may be considered in a case to the extent that they reasonably relate to the case, but each case presented to the Board will be decided based on the individual facts of the case in light of applicable procedure and substantive law.) On review, the submitted decisions have some similarities with the current case. Notwithstanding, the medical evidence varies and these decisions are not binding as to the current case. The Board acknowledges the Veteran’s statements that he has spoken with medical professionals who have related his sleep apnea to service-connected posttraumatic stress disorder. On review, there is no evidence that such an opinion was reduced to writing or reflected in treatment records. Thus, the Board does not find the Veteran’s lay statements as to what his physicians reportedly said sufficient to establish nexus. Warren v. Brown, 6 Vet. App. 4 (1993) (holding that a claimant’s lay statements relating what a medical professional told him, filtered as they are through a layperson’s sensibilities, are too attenuated and inherently unreliable to constitute competent evidence to support a claim). Finally, the Board acknowledges the Veteran’s sincere belief that his sleep apnea is either related to service or service-connected disability. This issue, however, is medically complex and consequently, the Board gives more probative weight to the VA opinions of record. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Veteran also argues that considering the articles and lay statements submitted, reasonable doubt should be resolved in his favor. The Board acknowledges this argument, but finds that the preponderance of the most probative evidence is against the claim. Hence, the doctrine of reasonable doubt is not for application. 38 C.F.R. § 3.102. The claim is denied. DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Carsten, Counsel