Citation Nr: 20022525 Decision Date: 04/01/20 Archive Date: 04/01/20 DOCKET NO. 15-39 950 DATE: April 1, 2020 ORDER Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected disabilities, is denied. FINDING OF FACT The Veteran’s sleep apnea was not present in service, or until many years after service, and is not caused or aggravated by any service-connected disability. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea, to include as secondary to service-connected disabilities, have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty August 1992 to May 1994. She testified before the undersigned Veterans Law Judge at a videoconference Board hearing in August 2018; a transcript of the hearing is associated with the claims file. In March 2019, this matter was remanded for further development, to include obtaining an additional VA medical opinion. Service connection Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for a disease first diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence showing (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be also granted on a secondary basis for a disability that is proximately due to or the result of an established service-connected disorder. See 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected disabilities The Veteran asserts her obstructive sleep apnea is due her military service or secondary to her service-connected disabilities. In statements in support of her claim, the Veteran pointed to her service treatment records (STRs) that show she was treated for passing out while in service. She reported that it was erroneously documented as being a seizure but clinicians in the military were never able to correctly diagnose it as they were not sure of the actual cause. The Veteran reported that her sleep apnea causes a lot of problems such as panic attacks and anxiety, which the doctors have documented as diagnoses in the medical records. VA treatment records show that the Veteran reported having sleep disturbances in January 2012. Records show that she was initially evaluated for insomnia; however, she later underwent a sleep study in October 2013 and was diagnosed with obstructive sleep apnea and prescribed a CPAP machine. These records fail to relate the Veteran’s sleep apnea to her military service. A Sleep Apnea Disability Benefits Questionnaire was completed on December 23, 2015. The examiner confirmed the diagnosis of obstructive sleep apnea that has been treated with a CPAP machine. After review of the Veteran’s claims folder, the examiner provided the opinion that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that the Veteran believed that the military records showing that she passed out could have been incorrectly diagnosed at the time and was a symptom of sleep apnea in service. She was seen several times during active duty for ‘passing out,’ once shown to be an anxiety reaction and another noted to be a syncopal episode. The examiner indicated that syncope is not known to be a sign or complication of sleep apnea. He stated that sleep apnea often presents with daytime fatigue due to non-restful sleep. Risk factors include obesity and a thick neck. The examiner noted that the Veteran has gained weight since her military service which is likely the major contributing factor to the development of sleep apnea. Pursuant to the March 2019 remand, the Veteran was examined in November 2019. The VA examiner opined that the current obstructive sleep apnea is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service-connected conditions. The examiner reasoned that the Veteran’s sleep study was done on October 28, 2013. There is no mention the sleep apnea was caused by other illness, joint disease, or head injury to include headaches. The examiner indicated that joint disease can affect sleep and lead to insomnia but not obstructive sleep apnea. The Veteran’s sleep apnea consultation dated June 5, 2013, noted sleep apnea risk factors as obesity and rhinitis. The VA examiner also opined regardless of an established baseline, the Veteran’s sleep apnea was not aggravated by the service-connected disabilities to include headaches and cervical spine disability. The examiner indicated that treatment records document the Veteran is non-complaint with CPAP therapy and treatment plan. The Veteran’s VA treatment records confirm a diagnosis of obstructive sleep apnea. As such, the first element of service connection has been met. Her STRs do not document any complaints, treatment, or diagnoses related to sleep apnea, but she did report episodes of passing out in service. Therefore, the second element of service connection is met. Importantly, she was not diagnosed with sleep apnea until approximately 19 years post-discharge. There is no competent opinion linking her current OSA to any syncopal episodes in service. In fact, the 2015 and 2019 VA examination reports, read together, find that no syncopal episodes in service would cause a diagnosis of sleep apnea 19 years after discharge from service. There is no competent opinion to the contrary. Indeed, the Veteran is service connected for lumbar spine disability, radiculopathy, left knee disability, cervical spine disability, and residuals of a head injury, which she has contended caused her sleep apnea. As noted above, service connection may also be established on a secondary basis. Regarding the so-called nexus element, the Board notes VA examiners have indicated that sleep apnea is not caused by the Veteran’s military service, nor was it caused or aggravated by any service-connected disabilities. Both examiners opinioned that her OSA was more likely caused by other factors to include obesity. The 2019 examiner also noted that any aggravated symptoms of her OSA were likely due to non-compliance of CPAP use and treatment plan, not any service-connected disability. The VA medical opinions, when taken together, are highly probative as to the element of nexus. The examiners are competent to provide the requested opinion, they considered the Veteran’s entire medical history, and provided clear conclusions with supporting rationale. There are no competent opinions of record in support of her claim. To the extent the Veteran asserted that her sleep apnea is related to service or secondary to her service-connected disabilities, she is not competent to provide such an opinion. She has not demonstrated that she has the necessary medical expertise to determine the etiology of her sleep apnea, which requires specialized medical acknowledge. The Board appreciates the Veteran’s sincere testimony regarding her sleep apnea, but absent a competent opinion linking it to service or as secondary to a service-connected disability, service connection must be denied. As such, the preponderance of the evidence is against the Veteran’s claim. Service connection for sleep apnea on a direct and secondary basis is denied. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. McPhaull, 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.