Citation Nr: 19108048 Decision Date: 02/04/19 Archive Date: 02/01/19 DOCKET NO. 10-18 547 DATE: February 4, 2019 ORDER Entitlement to service connection for sleep apnea to include as secondary to posttraumatic stress disorder (PTSD) and traumatic brain injury (TBI) is denied. FINDING OF FACT The Veteran’s sleep apnea is not related to an in-service injury or disease and is not otherwise secondary to service-connected PTSD or TBI. CONCLUSION OF LAW The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 1131, 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 June 1968 to October 1969. This matter comes before the Board of Veterans’ Appeals (Board) on remand from the United States Court of Appeals for Veterans Claims (Court). The Veteran was initially denied service connection for sleep apnea by a February 2007 rating decision. This matter was previously before the Board in July 2014, wherein the Board reopened the issue of service connection for sleep apnea as the Board found that new and material evidence was presented. The Board also remanded for additional development, to include having the new pertinent evidence to be considered by the Agency of Original Jurisdiction (AOJ) as the Veteran did not waive AOJ consideration. The Board also remanded for treatment records related to his sleep apnea. In June 2016, the Board issued a decision that denied service connection for sleep apnea, to include as secondary to service-connected PTSD and TBI. The Veteran appealed this decision to the Court. In a December 2016 Order, pursuant to a Joint Motion for Remand (JMR) filed by the parties, the Court vacated and remanded the June 2016 decision back to the Board. In a September 2017 Board decision, this matter was again remanded for an addendum medical opinion. This matter was originally before the Board on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before the undersigned Veterans Law Judge during a February 2012 hearing. A transcript of the hearing is associated with the Veteran’s claim file. This appeal has been advanced on docket pursuant to 38 C.F.R. §§ 20.900(c) (2017). 38 U.S.C. §§ 7107(a)(2) (West 2012). The Veteran seeks service connection for sleep apnea, contending that his sleep apnea had an onset in service, is related to service, or is secondary to his service-connected PTSD and/or TBI. 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, 1131; 38 C.F.R. § 3.303. A disability which is proximately due to or the result of a service-connected disease shall be service connected. 38 C.F.R. § 3.310(a). A claimant is also entitled to service connection on a secondary basis when it is shown that a service-connected disability has aggravated a nonservice-connected disability. Allen v. Brown, 7 Vet. App 439 (1995). The Veteran has a current diagnosis of sleep apnea and requires a continuous positive airway pressure (CPAP) machine. See Tallahassee Pulmonary Clinic records from August 2008. Service treatment records are silent for complaints or findings of any sleep-related conditions, to include sleep apnea. The Veteran testified at his hearing before the undersigned that he had problems sleeping since 1969 and would wake up during the night. He also testified that he would snore a lot in Vietnam. See February 2012 Board Hearing Transcript. As such, the question remaining before the Board is whether there is a nexus, or link, between the current diagnosis of sleep apnea and the Veteran’s service or the Veteran’s service-connected PTSD or TBI. Turning to the evidence of record, the Veteran was seen at Tallahassee Sleep Diagnostic Center in September 2002. The medical treatment records show that the Veteran was diagnosed with mild obstructive sleep apnea per a sleep study. It was recommended that the Veteran lose weight and consider a CPAP titration study. VA treatment records from October 2002 show that the Veteran had been falling asleep at work and recently had sleep studies. Treatment records from Tallahassee Pulmonary Clinic from August 2007 indicate that the Veteran is currently on nasal CPAP, but that his CPAP machine broke in February 2007 and his loaner CPAP machine was incorrectly set. He experienced increased daytime sleepiness and fatigue due to the incorrect setting.   The Veteran was afforded an examination by the VA in March 2009. The Veteran was diagnosed with obstructive sleep apnea. The VA examiner opined that the Veteran’s sleep apnea was not caused by or a result of the Veteran’s service-connected shell fragment wound of scalp with retained foreign body (claimed as brain trauma) or PTSD condition. The examiner stated that based on review of the medical records, medical literature, and clinical experience there is nothing to connect the obstructive sleep apnea condition to the service-connected conditions and a nexus is not possible. The Veteran’s private physician, Dr. S.E.L, provided a medical opinion in April 2012 which stated the Veteran’s sleep apnea is totally or partially due to his history of head injury. However, there was no indication that the physician reviewed any medical records or the Veteran’s claims folder, nor was there any indication that the Veteran’s medical history was considered. The same physician provided another statement in August 2014 which this time noted he reviewed the medical records and information from the VA. The physician opined that the Veteran’s PTSD may be a factor in his history of obstructive sleep apnea. Although the Board acknowledges that the physician provided an opinion which considered the VA treatment records, there was no rationale provided with this statement and only a web article from about.com about the possible link between sleep apnea and PTSD. Therefore, the Board does not place high probative value on these statements from Dr. S.E.L as there was no rationale provided with his statements. The VA’s claim file was reviewed in April 2014 by a VA Medical Center physician who is a Fellow of the American Academy of Sleep Medicine. The VA examiner opined that the records do not support that the Veteran necessarily developed obstructive sleep apnea while in service, as it is equally if not more likely that mild sleep apnea developed later in life. He further stated that the records do not reflect a formal sleep study during the years of military service. In   addition, the VA examiner opined that the records do not support that the Veteran’s sleep apnea is caused by his service-connected PTSD. The records support that any insomnia related to PTSD may itself by aggravated by obstructive sleep apnea, but the records do not support that obstructive sleep apnea itself is aggravated by PTSD, as the pathophysiology of obstructive sleep apnea is related to autonomic, muscular, airway, and sleep-phase related factors, and not to psychological or psychiatric etiology. Furthermore, the same VA examiner stated that the records do not support that the Veteran’s sleep apnea is caused or aggravated by TBI. The records support that the claimant has obstructive sleep apnea, and not central sleep apnea or other sleep-related respiratory disorder caused or aggravated by chronic brain injury sequelae. Finally, the VA examiner indicated that the records do not support that the Veteran’s sleep apnea is caused or aggravated by service-connected tension headaches (the headaches are clinically supported to be related to tension during the day, and are not described primarily as headache upon awakening) or scar (the injury and scar are not supported to involve the airway or otherwise be connected to sleep apnea). As to the other service-connected conditions of bilateral hearing loss, tinnitus, hepatitis C, or hypertension, these conditions are not connected to sleep apnea by pathophysiology. This VA examiner provided analysis by stating that the Veteran’s sleep apnea is supported to be mild, and was originally diagnosed relatively recently (2002). In further support of his analysis, the VA examiner stated that studies show that obstructive sleep apnea has increasing incidence in older years, although this type of obstructive sleep apnea often tends to remain mild, as opposed to the more severe forms of obstructive sleep apnea encountered in early adult years. In a study by the Cleveland Family Study Investigators, predictors of an increase in AHI (apnea hypopnea index) included age (up to sixty years), male gender, higher body mass index (BMI), increased in the waist-to-hip ratio, and increases in serum cholesterol (the study identified two hundred eighty-six subjects without evidence   of obstructive sleep apnea (AHI<5) at baseline and followed the progression of obstructive sleep apnea five years later). The VA examiner noted that several risk factors have been identified in the development of obstructive sleep apnea but undoubtedly, the strong risk factor is obesity reflected by several markers including BMI, neck circumference, and waist-to-hip ration. However, other risk factors group include older adults (up to age sixty-five) and men. In providing this medical opinion, the VA examiner indicated that he reviewed the Veteran’s claim file and specifically, he reviewed the instructions for the VA examination to include reviewing statements made by the Veteran’s wife, brother, and mother, a medical article specified by Veteran titled, “Sleep Events Among Veterans with Combat-Related Post Traumatic Stress Disorder,” the Veterans hearing transcript with the undersigned, VA treatment records, arguments by the Veteran’s representative, private treatment records, service treatment records, and rating decisions from the RO. The VA examiner attested that the opinion is based upon the basis of records that were made available to him at the time of the review. The Veteran was seen again at Tallahassee Pulmonary Clinic in March 2017 and reported that he is doing very well with the use of his CPAP. He stated that it is very beneficial and that he feels more refreshed and has less fatigue throughout the day. In November 2017, per the parties’ JMR, an addendum medical opinion was provided by the VA in accordance with the remand instructions from the Court. The VA examiner was specifically instructed to review the entire claims file, to include the lay statements from the Veteran, his spouse, brother, and mother discussing the symptomatology since service. Regarding direct service connection, the VA examiner stated that the Veteran’s sleep apnea is less likely as not (less than 50/50 probability) related to any aspect of the Veteran’s military service. The VA examiner cited to the Journal of the   American Medical Association article, “Risk Factors for Obstructive Sleep Apnea in Adults,” from April 2004. This established risk factors for obstructive sleep apnea according to the article are body habitus (obesity and overweight, central body fat distribution, large neck circumference, and craniofacial/upper airway abnormalities (those which result in crowding of the back of the mouth/throat). The examiner further states that obesity is the best documented risk factor for obstructive sleep apnea and the prevalence for obstructive sleep apnea progressively increases as the BMI and associated markers increase. In addition, the VA examiner specifically considered the Veteran’s personal and buddy lay statement; however, the described observations, to include snoring and poor or disturbing sleep habits, are non-specific signs/symptoms common in the general population. It was stated that most people with these symptoms do not have sleep apnea. To support her opinion, the VA examiner reviewed medical literature through UpToDate (a peer-reviewed compilation of the current medical literature), which included an article, “Overview of Obstructive Sleep Apnea in Adults.” Other medical literature from UpToDate also provided documentation which noted that “snoring is far more common than obstructive sleep apnea. Therefore, even though most patients who have obstructive sleep apnea snore, most patients who snore most patients do not have obstructive sleep apnea.” Next, the VA examiner opined that the Veteran’s sleep apnea is less likely as not (50 percent or greater probability) caused or aggravated by his service-connected PTSD. She stated that the pathophysiology behind a condition of obstructive sleep apnea (collapse of the posterior pharyngeal soft tissues) is not caused or aggravated by PTSD. The medical treatment records were classified as “mild” at the time of diagnosis. The Veteran’s private pulmonary visit entries document that his sleep apnea symptoms have improved with weight loss and CPAP compliance. Therefore, medical treatment record evidence goes against the occurrence of permanent aggravation. In the Veteran’s 2014 Statement in Support of Claim, he made a reference to a 2010 Walter Reed study. The VA examiner addressed the   reference to a 2010 Walter Reed study and stated that it has been misinterpreted to imply that PTSD causes obstructive sleep apnea. The Veteran’s statement, “almost two-thirds were found to suffer from sleep apnea” was taken out of context from the report of the 2010 study. Researchers of the 2010 study concluded that “there may be a link between the presence of obstructive sleep apnea and the ultimate development of PTSD after exposure to a traumatic event.” The VA examiner noted that “may be a link” describes a possibility, but not a probability. Additionally, researchers conclude that obstructive sleep apnea possibly leads to PTSD-the opposite of Veteran’s claim that PTSD leads to or aggravates obstructive sleep apnea. To support her opinion, the VA examiner cited to another study, “Obstructive Sleep Apnea in Combat-Related Posttraumatic Stress Disorder: A Controlled Polysomnography Study,” which examines the prevalence of obstructive sleep apnea in veterans with PTSD as compared to age and trauma-matched controls. The researchers document that reports of breathing interruptions from bed partners are less reliable than use of polysomnography in the detection of sleep apnea. The study concluded that the results indicate that PTSD is not necessarily associated with the occurrence of obstructive sleep apnea, as some uncontrolled studies suggested. The VA examiner also opined that the Veteran’s sleep apnea is less likely as not (less than 50/50 probability) caused or aggravated by his service-connected TBI. Per UpToDate, “sleep-related breathing disorders, including obstructive sleep apnea and central sleep apnea, may occur with increased frequency after TBI, although data are relatively sparse.” The authors go on to state that breathing disorders such as obstructive sleep apnea and central sleep apnea “may occur with increased frequency after TBI.” This indicates a possibility of an association, not a probability. An association, if found, does not indicate causation or aggravation. The researchers also documented the non-specific nature of sleep disturbances and sleep-disordered breathing. These signs and symptoms are shared by many different conditions. Another study the VA examiner cited to by Capaldi, et. Al from 2011 was titled, “Sleep Disruptions Among Returning Combat Veterans from Iraq and Afghanistan,” in which the researchers conclude, “among recently redeployed combat veterans, clinically significant sleep disturbances and problems with sleep-disordered breathing are common but nonspecific finding across primary diagnoses of PTSD, TBI, major depression, and anxiety disorder.” In conclusion, the VA examiner stated that the presence of shared signs and symptoms among various conditions does not substantiate a 50 percent probability of causation or aggravation between the condition. An example that the VA examiner provided compared the removal of a tooth by a dentist and hitting a tooth in a skateboard accident. Both events share signs and symptoms of bleeding and pain, however, the dentist’s extraction did not cause or aggravate the skateboard incident. Last, the VA examiner opined that the Veterans sleep apnea is less likely as not (less than 50/50 probability) caused or aggravated by any of his other service-connected disabilities- to include hepatitis C, residuals of shell fragment wound of scalp with retained foreign bodies, hypothyroidism associated with hepatitis C, tension headaches, malaria (not active), residuals of shell fragment wound anterior to proximal phalanx left fifth finger, or erectile dysfunction associated with PTSD. The rationale provided was that these conditions do not cause or aggravate the pathophysiology of obstructive sleep apnea. Review of medical literature through UpToDate does not show evidence for causation or aggravation of obstructive sleep apnea by the Veteran’s service-connected disabilities. Here, the competent evidence fails to establish a relationship between the Veteran’s service, PTSD, TBI, or any other service-connected disability and the Veteran’s sleep apnea. The March 2009, April 2014 and November 2017 VA examiners all provided negative nexus opinions as to the nature of the Veteran’s sleep apnea. In this regard, the Board affords great probative weight to the findings of the VA examiners who provided the medical opinions. Specifically, the VA examiner who provided the opinion in November 2017, carefully and extensively   recited the relevant evidence, demonstrating that she had reviewed the Veteran’s medical records, history, statements, and assertions. In assigning high probative value to these examiner’s opinions, the Board notes that the examiners reviewed the records and conducted their own research before forming their opinion. There is no indication that the examiners were not fully aware of the Veteran’s past medical history or that they misstated any relevant fact. Indeed, the examiners fully supported their conclusions with specific citation to the record and medical studies. To the extent the Veteran contends that his sleep apnea is related to service or his service-connected conditions of PTSD and TBI, the Board notes that while the Veteran is competent to attest to observable symptoms, such as snoring, he has not been shown to possess the medical expertise to be deemed competent to associate his prior injury to his current disability. As neither the Veteran nor his representative are shown to have appropriate training and expertise, neither are competent to render a persuasive opinion as to such matters. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 n.4. (Fe. Cir. 2007). Such complex medical matters are within the province of trained medical professionals See Jones v. Brown, 7 Vet. App. 134, 137-138 (1998). Consequently, the Board finds the VA examiner’s opinions from March 2009, April 2014, and November 2017 to be of greater probative value than the Veteran’s assertions to the contrary. The Veteran submitted previous Board decisions from January 2001 and May 2009 in which the Board granted service connection for sleep apnea secondary to PTSD. Although the Board strives for consistency in issuing its decisions, previously issued Board decisions will be considered binding only with regard to 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 on the basis of the individual facts of the case in light of applicable procedure and substantive law. 38 C.F.R. § 20.1303. Apart from the lack of precedential value, as different evidence in the case of another Veteran may have   resulted in a grant of service connection, the prior Board decision does not compel the conclusion that the facts in this case warrant an award of service connection. The Veteran also submitted articles on studies regarding a possible link between sleep apnea and PTSD. As these studies contains no information specific to the Veteran, there are of no probative value. See Wallin v. West, 11 Vet. App. 509, 514 (1998); Sacks v. West, 11 Vet. App. 314 (1998); Mattern v. West, 12 Vet. App. 222, 227 (1999). These articles were also reviewed by the VA examiner in November 2017 and the rationale given by the VA examiner was mentioned above. While the Board has considered the prior Board decisions and the internet articles submitted by the Veteran, none are binding and do not control the outcome of this appeal; rather, the facts of this particular case are determinative. For the reasons expressed above, the Board finds that a preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for sleep apnea, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Kim, Associate Counsel