Citation Nr: 20008341 Decision Date: 01/31/20 Archive Date: 01/31/20 DOCKET NO. 10-04 529 DATE: January 31, 2020 ORDER Entitlement to service connection for sleep apnea, to include as secondary to service-connected cervical spine disorder, is denied. FINDING OF FACT The Veteran’s sleep apnea is not secondary to service-connected cervical spine disorder and is not otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for sleep apnea due to service or service-connected cervical spine disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from March 1986 to May 1995. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in October 2019. A transcript of that hearing has been associated with the claims file. This matter was remanded by the Board in September 2013, January 2018, and July 2019 for further development and has since been returned to the Board for appellate review. Entitlement to service connection for sleep apnea, to include as secondary to service-connected cervical spine disorder. The Veteran asserts that she is entitled to service connection for sleep apnea on a secondary basis. However, as outlined below, the preponderance of the evidence or record demonstrates that the Veteran’s sleep apnea did not manifest during or as a result of active service, or as a result of service-connected cervical spine disorder. As such, service connection cannot be established on a direct or secondary basis. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 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. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Secondary service connection is warranted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Briefly, the threshold legal requirements for a successful secondary service connection claim are: (1) Evidence of a current disability for which secondary service connection is sought; (2) a disability for which service connection has been established; and (3) competent evidence of a nexus between the two. Wallin v. West, 11 Vet. App. 509, 512 (1998). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran’s service treatment records (STRs) are silent for complaints of or treatment for sleep apnea. In a March 2006 VA treatment record, the medical provider observed the Veteran to be snoring during hospital rounds. The medical provider noted no sleep problems, nightmares, or sleep apnea. In a January 2008 VA treatment record, the Veteran stated that she was snoring and was unable to sleep on her side because of her neck disorder. The medical provider had the impression that the Veteran was snoring and suggested that physical therapy could help her sleep on her side to have less snoring. The medical provider requested the Veteran be provided a sleep study. In a March 2008 VA treatment record, the Veteran was provided a sleep study and diagnosed with sleep apnea. In a January 2009 statement, the Veteran stated that she did not have any symptoms of sleep apnea prior to her neck surgery and the medications required for her severe pain. In an April 2009 statement, the Veteran started that her sleep apnea contributes and aggravates her neck disorder. In an April 2009 lay statement, the Veteran’s friend, RM, stated he observed that the Veteran began to snore and have symptoms of sleep apnea after her neck surgery in November 2006. On the January 2010 substantive appeal, the Veteran stated that her neck disorder with pain and limited mobility affected her sleep apnea. In a January 2012 statement, the Veteran stated that her sleep apnea is caused by her neck disorder. She stated that her neck affects her sleep patterns and positions. She stated that she snores louder because of the difficulty with her neck position. In a November 2014 VA examination, the examiner confirmed the Veteran’s diagnosis of sleep apnea. In a July 2016 VA opinion, the examiner opined that the Veteran’s sleep apnea is less likely than not due to or the result of her service-connected cervical spine disorder. The examiner reasoned that there is no evidence of distortion or obstruction of the oropharyngeal anatomy by the cervical spine fusion. The examiner reasoned that the relationship, if any, between anterior spinal fusion and obstructive sleep apnea is speculative. The examiner also stated that the influence of the Veteran’s reduced temporomandibular joint (TMJ) dysfunction on sleep apnea is unspecified; however, an association between TMJ disorders and sleep apnea has been documented. The examiner concluded that it is less likely than not that the Veteran’s sleep apnea was caused or aggravated by the cervical spine disorder. At the October 2017 Travel Board hearing, the Veteran testified that she began to develop symptoms for sleep apnea less than six months after her cervical spine surgery. Hearing Transcript (T.) at 3. She stated that prior to surgery she did not have any sleep disturbance. She stated that after the surgery she was unable to hold her head straight, her head was at a tilt, and she was unable to breathe normally at night. T. at 3-4. She stated that the surgery significantly changed the position of her body during sleep and therefore resulted in sleep apnea. T. at 5. The March 2018 VA cervical spine examiner observed that the Veteran has pain at rest with torticollis causing a deformity of the neck. In the September 2019 VA addendum medical opinion, the examiner opined that the Veteran’s sleep apnea is less likely than not proximately due to or the result of her service-connected disability. The examiner reasoned that the Veteran’s torticollis is contributing factor to the Veteran’s sleep apnea. The examiner stated there is very limited literature associating anterior cervical fusions with sleep apnea. The examiner noted some concern with the fusion plate placement but stated that the Veteran’s fusion would not impact the anatomy of the upper airway which is implicated in sleep apnea. The examiner cited medical literature in reaching these conclusions. Based on the foregoing, while the Veteran has a current diagnosis of sleep apnea, the preponderance of the evidence is against finding that the Veteran’s sleep apnea is proximately due to, the result of, or aggravated beyond its natural progression by her service-connected cervical spine disorder. There is simply no medical evidence of record to support a finding that the Veteran’s sleep apnea is secondary to her service-connected cervical spine disorder. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). Although the January 2008 VA treatment provider was concerned that the Veteran’s sleep apnea was related to her cervical spine disorder, the provider did not actually provide an opinion that the Veteran’s sleep apnea was caused or aggravated by her cervical spine disorder. The only competent evidence in the record that addresses secondary service connection is the July 2016 and September 2019 VA medical opinions, both of which offer negative opinions as to causation or aggravation of the Veteran’s sleep apnea by her service-connected cervical spine disorder. As there is no other evidence to the contrary, and the VA medical opinions were based on a full review of the record, the Board finds them persuasive. While the Veteran believes her sleep apnea is caused or aggravated beyond its natural progression by her cervical spine disorder, as a lay person she is not competent to provide a nexus opinion relating sleep apnea to the cervical spine disorder. The issue is medically complex, as it requires knowledge of the central nervous system and musculoskeletal system. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the VA examinations. Service connection may also be granted on a direct basis, but the preponderance of the evidence is also against finding that the Veteran’s sleep apnea is related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Veteran stated that her symptoms for sleep apnea began after her neck surgery in November 2006; however, the Board will still address direct service connection. As noted above, the Veteran did not experience the symptoms of sleep apnea in service or within a year after separation from service. The first indication of symptoms of sleep apnea occurred in 2006, and the disability was diagnosed in 2008, over ten years after separation from service. Consequently, service connection for sleep apnea on the basis that such became manifest in service and persisted, or on a presumptive basis (as a chronic disease under 38 U.S.C. § 1112), is not warranted. Notably, the Veteran has not submitted competent evidence to show that she has suffered from sleep apnea continuously since service. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). There is also no evidence that the Veteran’s sleep apnea is otherwise related to service. VA treatment records and examinations do not show that the Veteran’s sleep apnea is related to service. There is simply no competent, credible evidence of record to support a finding that her sleep apnea began in or is otherwise in any way related to her time in service. In light of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for sleep apnea, to include as secondary to service-connected cervical spine disorder. Accordingly, it must be denied. Caroline B. Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Thompson, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.