Citation Nr: 18158793 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 16-49 459 DATE: December 18, 2018 ORDER Entitlement to service connection for mild obstructive sleep apnea (MOSA) is denied. FINDING OF FACT The Veteran’s MOSA is neither proximately due to nor aggravated beyond its natural progression by his opiate use for his service-connected right knee and right shoulder, and is not otherwise related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for service connection for MOSA are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1972 to August 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 Rating Decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. On appeal, the Veteran contends that his sleep apnea is secondary to his opiate use for his service-connected knee and shoulder. To establish secondary service connection, 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 has been service connected for his right knee since January 1977 and for his right shoulder since October 2011. VA Medical Center (VAMC) records show that the Veteran was diagnosed with MOSA in December 2011 after he underwent a sleep study. In July 2015, the Veteran underwent a VA examination for his claim herein. The examination report confirmed the diagnosis of MOSA, but contained no etiological opinion. In his September 2015 Notice of Disagreement (NOD), the Veteran stated that the use of oxycodone causes a different type of sleep apnea whereby the brain may not trigger respirations for a period of time, which causes him to wake up numerous times. The Veteran contends that taking opiates for many years causes sleep apnea and that this information is “written on the walls of the Boise, ID, VAMC,” and “well documented at St. George Hospital research studies.” In June 2016, the VA requested an opinion as to whether the Veteran’s sleep apnea proximately is due to or the result of oxycodone use for the Veteran’s service-connected right knee and right shoulder. The examiner opined that the Veteran’s sleep apnea is far less likely than not secondary to his chronic opiate use for his service-connected disabilities and far more likely is attributable to his obesity. In his October 2016 substantive appeal, the Veteran reiterates his contention that opiate use causes sleep apnea. The Veteran also includes a handwritten page of, what appears to be, information he copied from literature at St. George’s Hospital. The Veteran’s handwritten page states that those taking opiates for a number of years can develop sleep apnea and other sleep disorders. The page also states that the Mayo Clinic has found that taking opiates can cause one’s breathing to become irregular and stop breathing altogether. The Veteran’s Representative submitted two briefs on behalf of the Veteran. In January 2017, the Representative summarized the Veteran’s own arguments found in his NOD and substantive appeal. In June 2018, the Representative again draws the Board’s attentions to arguments previously made and believes that the record contains sufficient evidence to grant the Veteran secondary service connection. There is evidence to establish that the Veteran has a non-service-connected diagnosis of MOSA and that he currently is taking opiates for his service-connected right knee and right shoulder disabilities. Thus, the first two elements of secondary service connection have been met. See 38 U.S.C. § 1110; Allen, 7 Vet. App. at 446; 38 C.F.R. § 3.310. The Board finds the VA medical evidence probative and persuasive. Indeed, the June 2016 VA medical opinion is highly probative. The examiner states that the Veteran’s sleep apnea is far less likely than not secondary to his opiate use and far more likely due to the Veteran’s obesity. The rationale for this opinion included a thorough discussion on the role that obesity plays in developing sleep apnea by explaining that the strongest risk factor for developing sleep apnea is indeed obesity. It was noted that the Veteran is seventy-six inches tall, giving him an ideal body weight of 202 pounds; but at the time he was diagnosed with MOSA, weighed 260–264 pounds, putting him at thirty percent overweight. Referencing an “Up-To-Date” study, the examiner explained that, for every ten percent over ideal weight, an individual is six times as likely to develop sleep apnea. Thus, the Veteran is 216 times (6 x 6 x 6) as likely to develop sleep apnea than if he were at his ideal weight. Additionally, because the Veteran has a BMI of 32 (in the obese range), he has a sixty-three percent chance of developing moderate to severe sleep apnea. The examiner also addressed the Veteran’s contentions that opiate use has given him a different kind of sleep apnea—central sleep apnea. The examiner noted that, during the December 2011 sleep study, the Veteran only had one central apnea during the entire duration of the sleep study (310 minutes), which puts him in the category of normal. The Board has taken into consideration the medical literature and arguments submitted by the Veteran and his representative alleging that the prescribed opiates for his service-connected disabilities proximately cause or aggravate the Veteran’s MOSA. However, the literature submitted referenced central sleep apnea rather than the diagnosed mild obstructive sleep apnea (MOSA). As the VA medical opinion explains, the Veteran’s MOSA is related to obesity and is not of the type that would be caused or aggravated by opiate use. The Veteran is not competent to render an etiological opinion that his MOSA is due to or aggravated by his opiate use. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 308–09 (2007). Indeed, the medical literature he submitted, while purporting to support the theory that the opiate use has caused or aggravated his MOSA, does nothing of the sort. Indeed, as explained above, the June 2016 opinion specifically addressed the Veteran’s contentions that he may have central sleep apnea, but the Veteran has been diagnosed with mild obstructive sleep apnea, for which obesity is the most determinative factor. Thus, with respect to a medical opinion as to proximate causation or aggravation, the Board affords little probative value to the Veteran. Examining the evidence of record, the Board finds that the June 2016 opinion is the most probative of whether the Veteran’s opiate use for his service-connected disabilities proximately caused his MOSA. Thus, the Board finds that the Veteran has not established the necessary elements for secondary service connection. See 38 U.S.C. § 1110; Allen, 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 MOSA, 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. § 3.310. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Trevor T. Bernard, Associate Counsel