Citation Nr: 18156148 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 16-49 234 DATE: December 7, 2018 ORDER Entitlement to secondary service connection for obstructive sleep apnea (OSA) is denied. FINDING OF FACT The Veteran’s OSA is neither proximately due to nor aggravated beyond its natural progression by his service-connected anxiety disorder (claimed as PTSD) and is not otherwise related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for secondary service connection for OSA are not met. 38 U.S.C. §§ 1110, 1131 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty during both Peacetime and the Gulf War Era from March 1982 to December 1986, and from August 1989 to January 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 Rating Decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston Salem, North Carolina. On appeal, the Veteran concedes that he never developed sleep apnea while in service. Rather, the Veteran argues that his service-connected anxiety disorder (claimed as posttraumatic stress disorder (PTSD)) has caused or aggravated his current diagnosis of OSA. The Veteran’s Representative has argued that, because there are two conflicting medical opinions of record, reasonable doubt should be afforded to the Veteran and secondary service connection granted. Ordinarily, to establish service connection on a direct basis, there must exist medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013); 38 C.F.R. § 3.303(a). To establish secondary service connection, however, a veteran must provide evidence of (1) a current, non-service-connected disability, (2) a current service-connected disability, and (3) evidence that the non-service-connected disability is either (i) proximately due to or the result of a service-connected disability or (ii) aggravated (increased in severity) beyond is natural progression by a service-connected disability. 38 U.S.C. § 1110; Allen v. Brown, 7 Vet. App. 439, 446 (1995); 38 C.F.R. § 3.310. In rendering a decision on appeal, the Board must analyze the competency, credibility, and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Buchanan v. Nicholson, 451 F.3d 1331, 1335–37 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. § 3.102. The Veteran filed for entitlement to service connection for OSA in October 2014. That same month, the Veteran also submitted a statement from his wife, S.H., various articles, and a statement from his private treating physician. A sleep study conducted at a VA Medical Center (VAMC) also was associated with the claims file that month. S.H. stated that the Veteran has been snoring for the past fifteen years, which has kept her awake to the point of sleeping in separate beds. S.H. states that she has observed the Veteran’s breathing cease during his sleep and that the Veteran complains of constant fatigue and easily is irritated. S.H. also states that the Veteran has been diagnosed with hypertension and has gained twenty pounds in the last ten years. The fist article the Veteran submitted is titled “Prevalence of Sleep Disorders Among Soldiers with Combat-Related [PTSD].” The article relates that, of the studied eighty soldiers returning from combat who were diagnosed with PTSD, sixty-one percent were diagnosed with OSA. The second article is titled “Sleep Disorders and Associated Medical Comorbidities in Active Duty Military Personnel.” The study reported in that article revealed that, of the 725 military personnel included in the study, 27.2 percent had mild OSA and 24.0 percent had moderate OSA. The third article is titled “Association of Psychiatric Disorders and Sleep Apnea in a Large Cohort.” The focus of that study/article was to determine whether psychiatric disorders commonly are associated with sleep apnea in Veterans Health Administration (VHA) beneficiaries. That study concluded that sleep apnea is associated with a higher prevalence of psychiatric comorbid conditions in VHA beneficiaries. The association suggests that patients with psychiatric disorders and coincident symptoms suggesting sleep-disordered breathing should be evaluated for OSA. The VAMC sleep study confirms that the Veteran currently suffers from OSA. The Veteran’s private treating physician, Dr. J.M., states that he has been treating the Veteran for the past seven years and also is a board-certified sleep physician. Dr. J.M. acknowledged that the Veteran is under Dr. J.M.’s care for hypertension and under the VA’s care for his anxiety disorder. Dr. J.M. stated that there is an “association of PTSD with [OSA].” In November 2014, the Veteran underwent a VA examination for his claim. The VA examiner reviewed the Veteran’s sleep study, Dr. J.M.’s statement, the articles submitted, and VAMC records. The VA examiner opined that Veteran’s OSA is both less likely than not proximately due to or the result of the Veteran’s service-connected anxiety condition and not aggravated beyond its natural progression by his service-connected anxiety condition. To support her opinion, the VA examiner stated that, while some studies suggest association between either PTSD or anxiety and OSA, there is no evidence of causality. The examiner states that there is no evidence that the Veteran’s recently-diagnosed OSA was aggravated by his service-connected disabilities. VAMC records from October to November 2014 document the treatment for the Veteran’s OSA, including providing the Veteran with a CPAP machine. In September 2015, the Veteran submitted two additional articles. The fourth article is titled “Elevated Awaking Thresholds During Sleep: Characteristics of Chronic War-Related [PTSD] Patients.” That article discusses a study conducted on twelve PTSD patients and twelve control patients. The test reveals that PTSD patients had significantly higher awaking thresholds than the control patients. The fifth article is titled “Disturbed Sleep in [PTSD]: Secondary Symptom or Core Feature?” That article very briefly mentions that sleep disturbances such as nightmares, insomnia, sleep apnea, and periodic limb movement may be a core feature, rather than a secondary symptom, of PTSD. In a September 2015 letter, Dr. J.M. states that he continues to treat the Veteran who also has developed hypertension and insulin resistance. Dr. J.M. states that all of these entities, including PTSD, are co-related and interacting. In his September 2015 Notice of Disagreement (NOD), the Veteran states that he cannot adequately sleep because he feels anxious and wakes up from recurring nightmares from his period of service, leaving him feeling un-energetic throughout the day. The Veteran also reports that his anxiety and depression have lead him to gian forty pounds, which has led to his sleep apnea. In October 2015 Dr. J.M. completed a Sleep Apnea Disability Benefits Questionnaire. Dr. J.M. indicated that the Veteran has been experiencing sleep issues since leaving the military. Dr. J.M. also attached a separate document containing his opinion, which was that the Veteran’s OSA is more likely than not related to the Veteran’s anxiety disorder. As the basis for that opinion, Dr. J.M. states that PTSD is known to cause sleep interruptions and that OSA also is associated with insulin resistance. In his October 2016 substantive appeal, the Veteran directs the Board’s attention to pieces of evidence already discussed herein, and states that a careful review of the record will reveal evidence of the Veteran’s hypertension and sleep interruptions. The Veteran also draws the Boards attention to the fact that he has gained forty pounds since service and that his anxiety and depression continue to worsen. Entitlement to service connection for OSA is denied. The Board acknowledges that both the VAMC sleep study and VAMC records establish that the Veteran suffers from OSA—a non-service-connected disability. The Board also recognizes the Veteran’s current service-connected anxiety disorder. Thus, the first two elements of secondary service connection have been established. See 38 U.S.C. § 1110; Brown, 7 Vet. App. at 446; 38 C.F.R. § 3.310. The evidence of record, however, does not establish the third element for secondary service connection; that the Veteran’s OSA proximately was caused by his anxiety disorder or that the Veteran’s service-connected anxiety disorder aggravated, beyond natural progression, the Veteran’s OSA. The Veteran has conceded that his OSA did not develop in service. A review of the Veteran’s Service Treatment Records (STRs) confirms that there was no treatment or diagnosis of OSA. The Veteran separated from service in January 1994 and was diagnosed with anxiety (claimed as PTSD) via a VA examination in July 2013. Dr. J.M.’s October 2014 and September 2015 statements have little-to-no probative value. These statements merely relate that there is an association between PTSD and OSA and that he believes the Veteran’s PTSD, hypertension, insulin resistance all are “co-related and interacting.” Not only do those statement fail to address the two etiological questions presented by a claim for secondary service connection, they raise the question of whether some other, non-service-connected disability may be exacerbating the Veteran’s OSA. Dr. J.M.’s examination and opinion also add little probative value in determining the Veteran’s claim. Dr. J.M. specifically indicated that the Veteran has been experiencing sleep issues since having left the military—well before his diagnosis of anxiety disorder. Although Dr. J.M. does opine that the Veteran’s anxiety disorder more likely than not is related to the Veteran’s OSA, relation does not equal proximately caused or aggravated. Additionally, Dr. J.M. himself noted that PTSD is known to cause sleep interruptions; however, that is a very broad term. Sleep interruptions could occur because of various reasons associated with his service-connected anxiety disorder, such as nightmares – a symptom the Veteran himself reported as having, and verified by one of the articles he submitted – and are part and parcel of the assigned 30 percent rating for that disability under 38 C.F.R. § 4.130, Diagnostic 9413. OSA is a respiratory disorder rated under 38 C.F.R. § 4.97, Diagnostic Code 6847, and is unrelated to sleep interruptions of non-respiratory origins. Furthermore, Dr. J.M. states that OSA is associated with insulin resistance. As the Veteran’s medical problems with insulin resistance are not service-connected or otherwise related to the appeal, such facts are irrelevant. For all these reasons, Dr. J.M.’s opinion lacks probative value. The November 2014 VA examination report, however, answered in the negative both the questions of proximate causation and aggravation. The VA examiner reviewed all the relevant evidence associated with the claims file, including the articles submitted by the Veteran and stated that there was no evidence of record to suggest that the Veteran’s anxiety caused or aggravated his OSA. The opinion reiterated that association between diagnoses does not mean causality. Thus, the Board finds the November 2014 VA examination to be the most probative of the medical evidence of record in determining the Veteran’s claim. See 38 U.S.C. § 1110; Brown, 7 Vet. App. at 446; 38 C.F.R. § 3.310. According to S.H.’s October 2014 statement, the Veteran has been snoring and struggling with irritability due to poor sleep for the past fifteen years and has gained twenty pounds in the last ten years. The Board notes that S.H. is competent to report her observations of the Veteran’s sleep patterns over the past years. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (“Personal knowledge is that which comes to the witness through the use of his [or her] senses—that which is heard, felt, seen, smelled, or tasted.”). The Board has no reason to doubt the credibility of S.H. S.H.’s statement, therefore, lends itself to the conclusion that the Veteran’s sleep apnea developed after service and well before his diagnosis of anxiety disorder. The Board likewise finds that Veteran competent and credible to report his sleeping patterns, mood throughout the day, and weight gain. See id. In his NOD, the Veteran states that he struggles with sleep, in part, because of anxiety and recurring nightmares, i.e. non-OSA-related reasons. While the Veteran reports a gain in weight since having separated from service, there is no evidence of record that attributes that weight gain to the Veteran’s anxiety disorder and, further, no evidence of record that attributes the Veteran’s OSA to the gain in weight. The Board does not find the articles submitted by the Veteran to be probative in the Veteran’s own case. The VA examiner specifically acknowledge the articles and reiterated that association does not equal causality. Additionally, the studies were conducted on a small number of Veterans and do not necessarily correspond to this Veteran’s particular situation. Therefore, the Board does not find these articles to be probative of the issue before it. Thus, examining all of the evidence of record, the Board finds that the Veteran has not substantiated his claim for entitlement to secondary service connection. See 38 U.S.C. § 1110; Brown, 7 Vet. App. at 446; 38 C.F.R. § 3.310. Because a preponderance of the evidence weighs against the Veteran’s claim for entitlement to secondary service connection for OSA, the Veteran’s appeal is denied. The Board is unable to find an approximate balance of the positive and negative evidence submitted to warrant for the Veteran a favorable decision. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53; 38 C.F.R. § 3.303(a). JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Trevor T. Bernard, Associate Counsel