Citation Nr: 20021496 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 16-63 601 DATE: March 26, 2020 ORDER Entitlement to service connection for obstructive sleep apnea (OSA), to include secondary to service-connected posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The Veteran’s OSA did not have its onset in service, did not manifest to a compensable degree within one year of discharge, and is not otherwise causally related to active service, to include secondary to the Veteran’s service-connected PTSD. CONCLUSION OF LAW The criteria for entitlement to service connection for OSA, to include secondary to PTSD have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1987 to August 1987, and from January 1989 to January 1993, and in the United States Air Force from January 1998 to June 1998, from July 2003 to November 2003, from January 2008 to April 2008, and from May 2008 to July 2008. This matter is before the Board of Veterans’ Appeals (the Board) on appeal from the May 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The rating decision, inter alia, denied service connection for OSA. The Veteran timely appealed. The Statement of the Case was issued in December 2016. Most recently, the Board issued a remand in November 2019 for additional development. The Agency of Original Jurisdiction (AOJ) substantially complied with the remand orders. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). Entitlement to service connection for OSA, to include secondary to service-connected PTSD The Veteran contends that his OSA is caused by or aggravated by his service-connected PTSD. In his May 2018 Appellate Brief, the Veteran, through his representative contends that his OSA had its onset during active duty in the form of snoring and stopping his breathing during sleep. In his October 2019 Appellate Brief, the Veteran contends that PTSD-inflicted veterans have a higher chance of having OSA and that some of the symptoms overlap. In his February 2020 Appellate Brief, the Veteran cited medical literature, contending that OSA prevalence may be increased in individuals with PTSD. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See U.S.C. §§ 1110 (2012); 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 occurrence 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. 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 for certain chronic diseases, including arthritis, may also be established on a presumptive basis by showing that such a disease was manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112 (2012); 38 C.F.R. § § 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). To establish service connection under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or, if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. The provisions of 38 C.F.R. § 3.303 (b) relating to continuity of symptomatology, however, can be applied only in cases involving those conditions explicitly enumerated under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Establishing a service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt will be resolved in each such issue in favor of the claimant. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102a. An appellant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the evidence must be preponderate against the claim. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran’s service treatment records (STRs) are silent for any complaints or treatments for OSA. The Veteran underwent a separation exam in September 1992 and was not noted to have any problems with sleeping. When asked whether he has problems with sleeping, the Veteran answered “no.” In June 2001, the Veteran underwent a re-enlistment exam in June 2001 and was not noted to have any problems sleeping. During the Veteran’s April 2002 re-enlistment exam, the Veteran was not found to have any sleeping problems. During that same exam, the Veteran reported that he is in good health. In July 2015, the Veteran’s VA treatment note indicated that the Veteran complained of snoring, apneic episodes, waking up unrefreshed, morning headaches, daytime sleepiness, sleepwalking, and reported being involved in a motor vehicle accident because he fell asleep at a traffic light. It was noted that there were no previous sleep studies completed. In August 2015, the Veteran’s VA treatment records indicate that the Veteran underwent a sleep study. He was diagnosed with mild OSA. The results indicated that the Veteran had reduced sleep efficiency, which could be secondary to sleeping in laboratory environment, medications, or mood disorders. The Veteran was prescribed a CPAP machine in December 2015. In June 2019, the Veteran underwent a VA examination for his claim. The Veteran reported that he was diagnosed with PTSD and had invasive dreams in 2013 or 2014 and then was diagnosed with OSA several months alter. The VA examiner noted that the Veteran did not have any complications from his disability. After reviewing the Veteran’s records, the VA examiner concluded that the Veteran’s OSA was at less likely than not caused by his military service. The VA examiner cited the Veteran’s September 1992 report of medical history during which the Veteran indicated that he does not have frequent trouble sleeping. The VA examiner also noted that the Veteran has gradually gained weight following that report and concluded that the Veteran’s OSA is likely related to agin and his gradual weight gain. The VA examiner also concluded that the Veteran’s OSA is less likely than not related to his service-related PTSD because PTSD is not a risk factor for OSA according to medical literature. The VA examiner added that OSA results from relaxation of the supporting structures of the upper airway with risk factors such as age, male gender, obesity, craniofacial abnormalities, and other medical conditions such as heart failure, stroke, and pregnancy. In January 2020, the VA produced an addendum medical opinion regarding the Veteran’s contentions that his PTSD aggravates his OSA. After reviewing the Veteran’s records, the VA examiner concluded that the Veteran’s OSA was less likely than not caused by his PTSD. The VA examiner indicated that according to medical literature, risk factors for OSA include advancing age, male gender, weight gain or obesity, and craniofacial abnormalities. The VA examiner also indicated that OSA can result in frequent arousals related to apnea and PTSD results from sleep disturbances related to hyperarousal. Additionally, OSA is caused by relaxation or narrowing of the upper airway and is not secondary to hyperarousal related to PTSD. The VA examiner also concluded that it is very likely that the Veteran’s weight gain contributed to his OSA diagnosis. With respect to the issue of aggravation, the VA examiner indicated that it is impossible to discern whether the Veteran’s sleep disturbances are entirely related to his PTSD which can result in hyperarousal during sleep or related to mild OSA which can result in arousal secondary to apnea. The VA examiner then concluded that it is at least as likely as not that the Veteran’s service-connected PTSD aggravated his OSA as the Veteran’s OSA is mild. Also, the VA examiner indicated that the Veteran did not have any complaints of chronic sleep disturbance or treatment with CPAP in his records from 2017 to October 2019. The Veteran cited an article from the Journal of Clinical Sleep Medicine, describing a study that concluded that OSA prevalence is higher in individuals with PTSD than without. The article goes on to state that there is a dearth of information on the relationship between PTSD and OSA among younger veterans with PTSD. The study also concluded that individuals with PTSD should be screened for OSA. After a careful review of the records, the Board finds that the preponderance of the evidence is against the Veteran’s claim. The most probative evidence of record weighs against a finding that the Veteran’s OSA had its onset during service, manifested to a compensable degree within one year of service, or is otherwise causally related to the Veteran’s service, to include being caused or aggravated by his service-connected PTSD. The Veteran asserts that he began snoring and experiencing sleep difficulties in service. However, his STRs do not corroborate these contentions and his VA treatment records indicate that he did not have complaints of apneic episodes until June 2015. The Veteran was not diagnosed with OSA until August 2015, several years after discharge. Moreover, snoring and experiencing sleep difficulties, generally, does not necessarily equate to a diagnosis of OSA at that time. A sleep study is necessary to diagnose the disability, which involves a mechanical obstruction, and requires medical expertise. While it is certainly reasonable to infer that symptoms of sleep apnea are likely to exist to some degree prior to the sleep study (and thus leading to need for a sleep study), there is no indication in this case that the Veteran’s report of in-service snoring was the onset of his currently diagnosed OSA. The Veteran’s OSA is not otherwise causally related to his service, to include his service-connected PTSD. While the Veteran believes that his sleep apnea is connected to his service and his service-connected PTSD, the most probative medical evidence is against the claim. Two different VA examiners have consistently concluded that the Veteran’s OSA is not related to service and have provided sound rationales. The Veteran was diagnosed with OSA several years after discharge. Moreover, the VA opinions indicated that the Veteran’s OSA has a specific diagnosis and etiology, likely relating to his age and weight gain. Given that the VA examiners provided sound medical rationale and cited appropriate medical literature, their opinions are assigned probative value. While the Veteran claims that his obstructive sleep apnea is related to his PTSD, the most probative evidence of record is against his claim. The medical literature that the Veteran provided in support of his claim at best suggests that some Veteran’s suffer from both PTSD and OSA. However, these studies do not indicate that there is a causal relationship between the two. Further, the studies do not address the Veteran’s specific medical history, diagnosis, and etiology, including his other risk factors. By contrast, two VA medical opinions indicated that PTSD is not a risk factor for OSA and has a completely different mechanism and etiology. The January 2020 VA addendum opinion also indicated that PTSD did not aggravate OSA. Thus, the Board does not assign the medical literature that the Veteran provided probative value because it does not take into consideration the Veteran’s medical history and does not provide conclusive results with respect to the relationship between PTSD and OSA. The Veteran believes that his OSA was caused by or aggravated by his PTSD. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of sleeping disorders, anatomy, and air pathways. Therefore, it is outside the competence of the Veteran because the record does not show that he has the skills or medical training necessary to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Accordingly, the preponderance of the evidence is against the claim for service connection for OSA, to include secondary to service-connected PTSD, and it is, therefore, denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt rule enunciated in 38 U.S.C. § 5107(b). However, as there is not an approximate balance of evidence, that rule is not helpful to the Veteran. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Kuksova, 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.