Citation Nr: 18152339 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 15-34 276 DATE: November 21, 2018 ORDER Service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected psychiatric disability, is denied. FINDING OF FACT The Veteran’s OSA is not shown to have been incurred in service or for many years thereafter, or to be otherwise the result of military service, to include any environmental exposure therein; nor is it shown to have been caused or aggravated by his service-connected psychiatric disability. CONCLUSION OF LAW The criteria for service connection for OSA, to include as secondary to service-psychiatric disability, are not met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 2000 to September 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This case was remanded for additional development in October 2017 and February 2018; the case has been returned to the Board at this time for further appellate review after substantial compliance with those remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). The Board acknowledges that an appeal for additional claims made by the Veteran has been perfected, but not yet certified to the Board. The Board’s review of the claims file reveals that the Agency of Original Jurisdiction (AOJ) is still taking action on these issues. As such, the Board finds that these issues are not ripe for appellate review, however, they may be the subject of a future Board decision. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). “To establish a right to compensation for a present disability, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service”—the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately caused by or aggravated by a condition for which service connection has already been established. 38 C.F.R. § 3.310. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The Veteran has variously alleged that his OSA started in service, is due to his in-service environmental exposures or, alternatively, is secondary to his service-psychiatric disability. The Board reflects that the Veteran is service-connected for PTSD and a depressive disorder. Turning to the evidence of record, the Veteran’s STRs are silent for any complaints, findings or diagnosis of OSA during military service. The Veteran’s VA treatment records show that the Veteran reported in September 2011 that he had been experiencing symptoms of sleep apnea for the past couple of months and that it was never a problem before. Subsequently, the Veteran’s OSA was diagnosed following a January 2012 sleep study. In addition to the Veteran’s lay statements regarding his sleep apnea, the Veteran’s wife also submitted a June 2015 statement describing the Veteran’s sleeping behavior upon his return from deployment in March 2004; she stated that he snored loudly, had trouble breathing, and that he would wake several times at night gasping for air. The Veteran’s wife alleged that the Veteran’s sleeping behavior caused him to be exhausted until he received his CPAP machine. The Veteran underwent a VA examination in November 2017, at which time the examiner opined that the Veteran’s OSA was less likely than not incurred in or caused by the claimed in-service injury, event or illness and specifically addressed the Veteran’s contentions regarding environmental exposure and the Veteran’s wife’s lay statement in the provided rationale. The examiner first explained that “obstructive sleep apnea is caused by repetitive upper airway obstruction during sleep as a result of narrowing of the respiratory passages” and clarified that although the Veteran’s environmental exposures may have exacerbated his airflow resistance and caused snoring, it would not be considered a causal factor for the Veteran’s OSA. The examiner went on to acknowledge the Veteran’s statements as well as those provided by his wife but concluded that without a sleep study to diagnose OSA, it would be impossible to opine with a 50 percent or greater probability that the Veteran had sleep apnea in service based on his wife’s report of snoring and sleep breathing changes. The examiner concluded based on the available evidence, including all medical and lay evidence associated with the claims file as well as reviewed medical literature, that “the Veteran’s weight gain after his military service and the accompanying peripharyngeal fat accumulation/increased neck circumference would be the most significant risk factors for the development of his” OSA. Additionally, that examiner provided an addendum opinion in June 2018. The examiner again addressed the Veteran’s contention that his sleep apnea was related to environmental exposures in service and also addressed the Veteran’s contention that his sleep apnea is secondary to his service-connected PTSD and depressive disorder. Initially, the examiner opined that the Veteran’s OSA was less likely than not incurred in or caused by the claimed in-service injury, event or illness. With regard to his environmental exposures in-service and his sleep apnea, the examiner explained that the Veteran’s sleep apnea is the result of his altered airway anatomy and that there is insufficient medical evidence to suggest that the Veteran’s environmental exposures were causal, proximately causal, or aggravating to his OSA. Regarding a secondary relationship between his service-connected mental health conditions, the examiner explained that the etiology of the Veteran’s OSA was the development of his post-service obesity and found that it was less likely than not that the Veteran’s mental health conditions caused his obesity. The examiner specifically addressed the Veteran’s contentions that his mental health conditions caused sleep disturbance which caused his weight gain and also that the medications he took to treat his mental health conditions caused his weight gain. To explain why the Veteran’s mental health conditions were not a likely cause of his OSA, the examiner pointed to the fact that the Veteran’s weight was unchanged during a period of time where his mental health and sleep symptoms had improved. The examiner stated that obesity involves more than one variable and is due to more than his mental health and sleep disturbances. The examiner also specifically reviewed the literature cited in the January 2018 Informal Hearing Presentation and explained why the information contained in those articles did not provide persuasive evidence in support of the Veteran’s claim. The examiner concluded that it is less likely than not that the Veteran’s sleep apnea was caused by or is or has been aggravated by his service-connected psychiatric disability. Turning to the required elements to establish entitlement to service connection, the Board first finds that competent evidence establishes that the Veteran has OSA. Hence, the current disability requirement for service connection is met. This case therefore turns on whether the Veteran’s OSA is related to either service or his service-connected psychiatric disability. The Board finds that it is not. As noted above, OSA was not shown in service or for many years thereafter. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim, which weighs against the claim). Significantly, the first documented evidence of complaints related to OSA was in September 2011, approximately 7 years after the Veteran left service and after, as he and the examiner noted, he experienced a significant increase in body weight. The Board acknowledges the Veteran and his wife’s statements in this case regarding onset of symptomatology and assertions that his OSA was due to service and/or caused or aggravated by his service-connected psychiatric disability. Although the Veteran and his wife are competent to state the symptomatology experienced or witnessed, neither he nor his wife have the requisite medical experience or expertise in this case to render a diagnosis or otherwise provide an etiological medical opinion. 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); see also Jones v. West, 12 Vet. App. 383, 385 (1999) (where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). Accordingly, the Board finds any such statements by the Veteran and his wife regarding etiology due to service or his service-connected psychiatric disability to be not competent. Rather, the only competent and probative opinion to address the medical relationship, if any, between the Veteran’s current sleep apnea and his service and/or his service-connected psychiatric disability is the VA examiner’s November 2017 and June 2018 opinions. Those opinions were clearly based on examination of the Veteran, full consideration of the Veteran’s documented medical history and assertions per both he and his wife, and was supported by clearly-stated rationale. As such, the Board accepts these opinions, collectively, as probative of the medical nexus questions. See, e.g. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). In short, the competent probative medical evidence of record is negative and neither the Veteran nor his representative has presented or identified any contrary medical evidence or opinion. Thus, the November 2017 and June 2019 medical opinions are not refuted by any evidence of record at this time. Accordingly, the Board finds that the Veteran’s OSA is not shown to have been incurred in service or for many years thereafter, or otherwise shown to be related to military service, to include any environmental exposures therein; nor does the evidence demonstrate that his OSA was caused or aggravated by his service-connected psychiatric disability. The Board must therefore deny the Veteran’s claim for service connection for OSA based on the evidence of record at this time. See 38 C.F.R. §§ 3.102, 3.303, 3.310. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jacqulyn Lane, Associate Counsel