Citation Nr: A20012303 Decision Date: 07/24/20 Archive Date: 07/24/20 DOCKET NO. 191130-46568 DATE: July 24, 2020 ORDER Entitlement to service-connection, to include on a secondary basis, for obstructive sleep apnea is denied. FINDINGS OF FACT The Veteran’s sleep disorder did not originate in service or for many years thereafter, is not otherwise etiologically related to her active service, and was not caused or aggravated by service-connected disability. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea, to include on a secondary basis, have not been met. 38 U.S.C. §§ 1110, 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 November 2009 to April 2012. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. This decision has been written consistent with the new AMA framework. In August 2019 the Veteran filed a supplemental claim for the issue of entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected PTSD. In a September 2019 rating decision, the AOJ determined that new and relevant had been submitted to readjudicate the claim, but denied the claim on the merits; the Board is bound by the favorable determination that new and relevant evidence has been submitted. The Veteran timely appealed this decision to the Board in November 2019 and requested direct review of the evidence considered by the AOJ. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either proximately caused by or proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). 1. Entitlement to service connection for obstructive sleep apnea The Veteran contends that service connection is warranted for her currently diagnosed sleep apnea. Specifically, the Veteran asserts that her sleep apnea is secondary to her service-connected PTSD with alcohol use disorder disability. The Board notes that when the Veteran first filed a claim for the disorder at issue, she claimed the disorder was caused by environmental hazards encountered in the Gulf War. In her second claim, the Veteran alleged that her sleep disorder was secondary to her service-connected PTSD disability. This is the primary theory of service connection she raises in this appeal. The Veteran’s post-service treatment records reflect that she was diagnosed with mild obstructive sleep apnea in June 2017. The record also shows that the Veteran is service-connected for PTSD with alcohol use disorder, effective from April 2012. The Veteran’s service treatment records (STRs) show that in April 2011, while deployed to Afghanistan the Veteran began experiencing some insomnia. An April 6th treatment note reflects that the Veteran reported difficulty falling asleep and staying asleep. The examiner noted the insomnia was likely situational, possibly related to anxiety about being in Afghanistan. The examiner also stated it was possible the Veteran was developing PTSD. On April 9th the Veteran saw a psychologist about her insomnia who prescribed sleep medication. An April 18th note shows the Veteran reported still experiencing insomnia, getting only about 2.5 hours the previous night. She stated she did not take her prescribed sleep aid because she wanted to stay up late to speak with her daughter as her schedule had not allowed it in previous days. She was advised to take her medications. An April 21st follow-up note shows the Veteran continued to have insomnia. She reported taking sleep medication the night before but still stayed awake for 2 hours, woke up in the night, and was unable to return to sleep. The Veteran stated she was going to see a psychiatrist that day. An April 22, 2011 note shows the Veteran self-referred to the Combat Stress Clinic. She reported being able to fall asleep but wakes after only 1 to 2 hours and has difficulty getting back to sleep. The Veteran stated when she went home for rest and recreation leave, she had no trouble sleeping. She described feeling frustrated and tired most of the time and relayed that she struggled with comments made by coworkers and supervisors about her move to Farah. The Veteran stated that she had taken a sleep aid when she was having marital worries from 2005 to 2009. The Veteran was diagnosed with primary insomnia, was advised to follow-up as need for treatment of her insomnia, and prescribed sleep medication. Lastly, April 29th and May 10th notes show the Veteran was seen for prescription refills for her insomnia. An April 2018 VA opinion reflects that it is less likely than the Veteran’s sleep apnea is proximately due to or the result of PTSD. The rationale provided was that the medical literature at this time does not mention PTSD as a cause or contributor for sleep apnea, noting that PTSD has no direct effect on the muscles of the airway resulting in sleep apnea. Additionally, the examiner stated the Veteran had other PTSD independent risk factors for sleep apnea such as her nasal congestion due to allergic rhinitis, being overweight, and being a tobacco user, which would have resulted in the development of her obstructive sleep apnea. The examiner cited to medical literature that states being overweight alone would have resulted in a 21% likelihood of having obstructive sleep apnea. In support of her claim, the Veteran submitted an August 2019 sleep apnea DBQ completed by a private physician. The physician stated that it is most likely that obstructive sleep apnea is associated with, or due to service-connected PTSD. The examiner listed several articles but did not specifically cite to any of them. The physician also stated the Veteran was treated for sleep disorders in service that may have been caused by obstructive sleep apnea, noting the Veteran’s treatment for insomnia. Lastly, the physician stated 25% of insomnia may be due to obstructive sleep apnea. Based on the foregoing, the Board finds that the preponderance of the evidence is against the claim. The Veteran no longer contends that the sleep disorder originated in service, to include from environmental hazards. Nevertheless, this theory was raised in the past and must be addressed. While the Veteran was treated in service for insomnia, no diagnosis of sleep apnea was given until 2017, five years after service. Additionally, the treating physician during service noted her insomnia was likely due to the anxiety of being in Afghanistan and perhaps a symptom of possible PTSD. This is supported by the fact the Veteran reported that she had no problems sleeping when she was away from the base on rest and recreation. The Board notes that chronic sleep impairment is one of the symptoms the Veteran is being compensated for in her PTSD disability rating. There is no medical evidence linking sleep apnea to service. Nor is there otherwise any competent evidence linking it to service. The Board finds that determining whether sleep apnea originated in service, particularly where there are other sleep problems present (for which service connection is already recognized) does not fall within the capabilities of a layperson to offer an opinion. The Board also notes that sleep apnea is a diagnosed disability, and that there otherwise no evidence of an undiagnosed sleep disorder that has symptoms not already contemplated by the rating for the service connected PTSD. Turning to secondary service connection, the Board finds the private sleep apnea DBQ to be unpersuasive and not probative to the issue at hand. There is no indication the physician had access to, or reviewed, the complete claims file. It appears that all information included on the DBQ was provided by the Veteran, and is not consistent with the medical record. Furthermore, the opinion was supported by very little rationale, and what was provided was speculative. The April 2018 VA opinion, on the other hand, provided a rationale against the claim that relied on pertinent medical literature, and the Veteran’s particular nonservice-connected independent risk factors for sleep apnea. The Board also notes that during service, the treating physician noted the Veteran’s insomnia was likely due to the anxiety of being in Afghanistan and perhaps a symptom of possible PTSD. This is supported by the fact the Veteran reported that she had no problems sleeping when she was away from the base on rest and recreation. The Board notes that chronic sleep impairment is one of the symptoms the Veteran is being compensated for in her PTSD disability rating. In sum, there is no evidence of sleep apnea in service or within one year of service, and the preponderance of the competent evidence does not link the condition to service or a service-connected disability. The preponderance of the evidence is against the claim, and service connection is denied. The benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Mitchell, 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.