Citation Nr: 21000041 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 12-16 442 DATE: January 4, 2021 ORDER Entitlement to service connection for sleep apnea is denied. FINDING OF FACT The preponderance of evidence indicates the Veteran’s obstructive sleep apnea is not causally or etiologically due to service and is not proximately due to or aggravated by his posttraumatic stress disorder (PTSD). CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea, to include as secondary to PTSD, 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 for training from September 1982 to January 1983 and on active duty from March 1984 to December 1993. This matter comes before the Board of Veterans’ Appeals (Board) following November 2014, June 2017, and October 2019 Board remands. This matter was originally on appeal from a March 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In September 2014, the Veteran testified at a videoconference hearing before the undersigned. A transcript of the hearing has been associated with the claims file. Service Connection Under the relevant laws and regulations, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). In general, 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 granted on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a) and (b). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish entitlement to service connection on a secondary basis, there must be 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. Id. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 4 (1990). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for sleep apnea The Veteran seeks entitlement to service connection for obstructive sleep apnea on a direct basis; or in the alternative, as secondary to his PTSD. The Veteran’s December 1993 service treatment records (STRs) indicate the Veteran complained of shortness of breath and frequent trouble sleeping in his separation examination Report of Medical History. The Veteran reported he was not evaluated for trouble sleeping in service. He stated that he was nervous when trying to sleep. The Veteran’s December 1993 Report of Medical Examination shows the examiner found the Veteran’s lung, chest, and vascular system to be normal. The Veteran was afforded a VA examination in July 1994. The examiner noted the Veteran reported some problems with sleep disturbances related to his mental disorder. In an April 1995 VA treatment note, the Veteran reported sleep disturbances, intrusive thoughts, and anger. In December 2011, the Veteran was diagnosed with severe obstructive sleep apnea (OSA). In May 2012 the Veteran was afforded a VA examination. The examiner opined the Veteran’s OSA was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated review of STRs show a complaint during the separation examination of shortness of breath associated with chest pain and palpitations while the Veteran was awake. The treatment records also mention problems with sleep due to difficulty falling and staying asleep, due to anxiety and nervousness per explanation comments on the exam report. The examiner also stated the separation exam does not show complaint of daytime fatigue or sleepiness or witnessed apneas during sleep by relative. The Veteran was diagnosed with sleep apnea in December 2011 after a complaint of snoring and witnessed apneas during sleep by a relative. The examiner opined that the Veteran's symptoms on separation exam are most probably related to mental health issues and not with sleep apnea. At an October 2014 Board hearing, the Veteran’s representative stated that the Veteran was diagnosed with sleep apnea during the second period of service in 1986 but those records are not available for review. The Veteran stated he did not have a sleep study performed in service; he was diagnosed based on the condition at the time by a doctor in the hospital. The Veteran testified that he had gone two weeks without sleep while in service, and he was told that his headaches and lack of sleep were related to sleep apnea. However, the Veteran stated no one put it in the record. A November 2014 treatment note indicates the Veteran reported difficulty maintaining sleep and presented with insomnia. The examiner noted complaints of weight gain/obesity, fatigue, hypersomnia, breathing difficulties while asleep, difficulty staying asleep, frequent awakenings during the night, unrefreshing sleep, chocking/gasping/snorting during sleep and morning headaches. The Veteran denied excessive movement during sleep. The November 2014 Board decision remanded the Veteran’s claim for an opinion assessing the Veteran’s sleep apnea in relation to his PTSD. In a February 2015 VA examination report, the examiner opined the Veteran’s OSA is less likely than not proximately due to or the result of the Veteran's service-connected condition. The examiner stated that online review of available medical data does not show evidence-based medical information that has established a cause and effect relationship of PTSD as a risk and/or aggravating factor for obstructive sleep apnea. Additionally, the examiner stated review of the STRs show that during the separation exam the Veteran complained of problems with sleep due to difficulty falling and staying sleep due to “anxiety and nervousness" per explanation comments on the exam report. The examiner stated these symptoms are mostly compatible with insomnia that may be related to a mental health condition. However, the examiner stated he cannot say that these symptoms are related to the Veteran's service-connected PTSD without use of mere speculation as insomnia could be related to multiple medical conditions or could be just by itself and no other clinical details were given on the separation exam. A March 2015 VA examination for PTSD notes chronic sleep impairment as a symptom applicable to his PTSD diagnosis. A June 2017 Board decision remanded the Veteran’s claim for additional development. In October 2019, the Board remanded the Veteran’s claim for an addendum opinion. In an October 2019 VA medical opinion, the examiner opined the Veteran’s OSA was less likely than not proximately due to or the result of the Veteran’s service-connected condition. The examiner stated based on the pathophysiology of OSA, the brainstem nuclei coordinate the ventilatory actions of upper airway muscles, chest wall muscles, and the diaphragm. Phasic (i.e., inspiratory, expiratory) neural output induces cyclic increases and decreases of ventilatory muscle activation; the result is a series of breaths that comprise the ventilatory rhythm. Whether this rhythm is regular, irregular, or periodic over time is determined by the ventilatory control system. Upper airway patency is maintained by the bony and cartilaginous structures surrounding the naso- and oropharynx, plus twelve pairs of skeletal muscles. The examiner maintained that patients with OSA have a reduced upper airway size due to excess surrounding soft tissue or a highly compliant airway. The examiner noted that a reduced airway size, combined with diminished neural output to the upper airway muscles during sleep and at apnea onset, can result in partial or complete upper airway collapse. The results are obstructive and mixed apneas, the tendency of the upper airway to collapse is determined by its critical closing pressure. Furthermore, the examiner stated that the most important risk factors for OSA are advancing age, male gender, obesity, and craniofacial or upper airway soft tissue abnormalities. In relation to age the examiner stated, the prevalence of OSA increases from young adulthood with a plateau occurring at 55 to 65 years of age. For gender, OSA is approximately two to three times more common in males than females. In addition, obesity is the strongest risk factor for OSA in both males and females. In regard to craniofacial and upper airway abnormalities, craniofacial and upper airway soft tissue abnormalities each increase the likelihood of having or developing OSA. Examples of such abnormalities include an abnormal maxillary or short mandibular size, a wide craniofacial base, tonsillar hypertrophy, and adenoid hypertrophy. Additionally, the examiner stated that nasal congestion confers an approximately twofold increase in the prevalence of OSA compared with controls, regardless of cause. This is probably related to increased resistance due to decreased nasal patency; however, OSA may or may not improve with correction of nasal congestion. Smoking appears to increase the risk of OSA or at least aggravate preexisting symptoms. Patients with OSA often report a family history of snoring or OSA, while this could be due to shared behavioral factors related to obesity, there may also be a genetic predisposition to OSA through factors such as craniofacial structure. It has been suggested that about one-fourth of the prevalence of OSA as a disease has a genetic basis. While a variety of substances and medications, including alcohol, benzodiazepines, and narcotics, may exacerbate OSA, a causative link is unproven. The examiner noted prevalence of OSA is increased in patients with a variety of medical conditions, to include PTSD. However, the examiner stated, even though the prevalence of obstructive sleep apnea is increased in the above-mentioned conditions, a causative nexus has not been established. In conclusion, review of the most current evidence-based medical literature does not show any pathophysiologic evidence to correlate PTSD as a cause/ etiology and/or as an aggravating factor of obstructive sleep apnea, or to support any physical or emotional factors from PSTD that influence obstruction of the airway in obstructive sleep apnea. Therefore, the claimed condition of obstructive sleep apnea is less likely than not proximately due to or the result of the Veteran's PTSD. The examiner also stated the Veteran’s OSA was less likely than not aggravated beyond its natural progression by the Veteran’s PTSD for the reasons stated above. The Board finds the VA opinions probative because the examiners had the appropriate training, expertise and knowledge to evaluate the claimed disorder. The Board has considered the Veteran’s own statements regarding the nature and etiology of his disorder. The Board acknowledges that the Veteran is competent to give evidence about what he experiences; for example, he is competent to discuss pain and other symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). In the present case, however, the Board finds that the Veteran’s lay statements that his current OSA is related to in-service sleep complaints or due to his service-connected PTSD, are outweighed by the post-service medical opinions. Further, the Veteran is not competent to diagnose any sleep apnea disorder or render an opinion as to the cause or etiology of any current sleep apnea disorder because he does not have the requisite medical knowledge or training. He is not competent to provide an opinion as to nature and etiology in a case involving complex medical facts. Although the Veteran contends his obstructive sleep apnea is proximately due to or aggravated by his PTSD, the May 2012 and February 2015 VA examiners stated that the Veteran’s symptoms on his separation exam are most probably related to mental health issues and not with sleep apnea. The February 2015 VA examiner stated that online review of available medical data does not show evidence-based medical information that has established a cause and effect relationship of PTSD as a risk and/or aggravating factor for obstructive sleep apnea. Further, the October 2019 VA examiner stated based on the pathophysiology of OSA, the brainstem nuclei coordinate the ventilatory actions of upper airway muscles, chest wall muscles, and the diaphragm. Phasic (i.e., inspiratory, expiratory) neural output induces cyclic increases and decreases of ventilatory muscle activation; the result is a series of breaths that comprise the ventilatory rhythm. The examiner stated that a review of most current evidence-based medical literature does not show any pathophysiologic evidence to correlate PTSD as a cause/ etiology and/or as an aggravating factor of obstructive sleep apnea, or to support any physical or emotional factors from PSTD that influence obstruction of the airway in obstructive sleep apnea. Although the examiner noted prevalence of OSA is increased in patients with a variety of medical conditions, to include PTSD, the examiner maintained that even though the prevalence of obstructive sleep apnea is increased in the above-mentioned conditions, a causative nexus has not been established. It is also important for the Board to acknowledge an error in the October 2019 Board Remand to the extent it suggested that a portion of the February 2015 VA opinion did not comply with Jones v. Shinseki, 23 Vet. App. 382, 391 (2010). Indeed, the prior June 2017 Board Remand found no error in the February 2015 VA opinion and only ordered an addendum opinion “If, and only if, additional service treatment records are obtained.” The February 2015 VA examiner did indeed explain why he could not say whether the symptoms noted on separation are related to the Veteran’s service-connected PTSD without use of mere speculation as insomnia could be related to multiple medical conditions or could be just by itself. The examiner pointed out that no other clinical details were given on the separation examination to permit such a definitive determination to be made. This satisfies Jones. In any event, crucially, it does not matter because the VA examiner specifically found that the Veteran’s symptoms were mostly compatible with insomnia rather than the separate and distinct disease of sleep apnea. Thus, whether the insomniac symptoms were a condition of its own or part of the PTSD, the Veteran is otherwise seeking service connection for an entirely different condition, sleep apnea. As noted above, the Veteran is already service connected and compensated for sleep impairment associated with his PTSD. Also, the Veteran’s lay speculative assertions that he had sleep apnea in service and ever since service because he had sleep disturbances in service and has had sleep disturbances ever since service has been rendered clinically unfounded by the medical experts who carefully considered the Veteran’s contentions, the medical evidence of record, and the nature of sleep apnea. The Board finds the Veteran’s assertions that he was diagnosed with sleep apnea in service not credible. In summary, although the Veteran has a current diagnosis of obstructive sleep apnea, there are no probative persuasive medical opinions linking his current disorder to service, and there is no probative persuasive competent medical evidence that his obstructive sleep apnea is proximately due to or aggravated by his PTSD. For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for obstructive sleep apnea. (Continued on the next page)   In short, the Board finds that the Veteran’s sleep apnea is not related to service or to a service-connected disability. The Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the claim is not in equipoise. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the claim must be denied. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Daley, 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.