Citation Nr: 21002003 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 17-08 381 DATE: January 12, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected disabilities, is denied. FINDING OF FACT The Veteran’s OSA did not originate in service, within a year of service, and is not otherwise etiologically related to the Veteran’s active service or to any service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for OSA, to include as secondary to service-connected disabilities, 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 September 1999 to June 2003. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran testified at a Board videoconference hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. By way of background, this matter was previously before the Board in February 2020, when it was remanded for further development. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury; or, for any increase in severity of a nonservice-connected disease or injury which is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected condition. 38 C.F.R. §§ 3.310(a), (b). Establishing 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) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Lay evidence presented by a Veteran concerning continuity of symptoms after service may not be deemed to lack credibility solely because of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (2006). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for OSA, to include as secondary to service connected disabilities, is denied. During the August 2019 Board hearing, the Veteran testified that his OSA manifested while he was serving on active duty. Specifically, the Veteran reported that his ex-wife told him that he snored and stopped breathing during the night. Alternatively, the Veteran testified that his OSA may have been caused or aggravated by his service-connected disabilities, including posttraumatic stress disorder (PTSD) with unspecified depressive disorder, bilateral pes planus, and right knee disabilities. See August 2019 Hearing Transcript, pages 1-4; see also August 2010 Correspondence. A review of the Veteran’s service treatment records (STRs) shows a September 1999 enlistment report of medical examination that is absent for findings pertaining to sleep, and the Veteran denied frequent trouble sleeping on the corresponding report of medical history. The Veteran’s January 2003 separation report of medical examination was also normal, and the Veteran continued to deny frequent trouble sleeping on the November 2002 separation report of medical history. See October 2013 STR – Medical. A review of the post-service treatment records shows an October 2007 mental health assessment, during which the Veteran stated that he felt tired and sick all the time. He further reported waves of significant fatigue when he touched doorknobs and other objects. During a December 2007 VA examination for mental disorders, the Veteran endorsed ongoing pain and weakness in his knees and reported increased sleep, fatigue, and listlessness. The Veteran also stated that his sleep patterns varied, and he often slept for two to four hours during the middle of the day, in addition to ten to twelve hours of sleep per night. A November 2010 primary care note shows that the Veteran endorsed chronic intermittent fatigue and a sleep disorder. The assessment included fatigue/sleep disorder. In October 2013, the Veteran reported some light-headedness, fatigue, and an increase in sleep. His neighbors were found to have a meth lab and the Veteran thought that the chemicals they were using were affecting him. The assessment was obesity, right knee arthritis, and fatigue and light-headedness. The examiner noted that the Veteran’s fatigue and lightheadedness could be related to his obesity, hypothyroid or diabetes mellitus or could have been caused by previous exposure to chemicals (meth lab). In December 2013, the Veteran reported that he woke up tired. The Veteran also indicated that he did not know whether he snored but stated that it was unlikely because his son had not mentioned it. The assessment included possible OSA. See September 2014 CAPRI. The Veteran underwent a diagnostic sleep study at OmniSleep Medicine Centers in February 2016. The private physician noted that the Veteran’s medical history was significant for tobacco use, chronic pain, PTSD, depression, anxiety, and class three obesity. During the study, the Veteran endorsed sleep related symptoms, to include snoring, waking up gasping for air, witnessed apneas, frequent awakenings at night, and excessive daytime sleepiness. Following the study, a private physician diagnosed the Veteran with mild to moderate OSA, severe during REM sleep. See April 2020 Medical Treatment Record – Non-Government Facility. The Veteran was afforded a VA examination for sleep apnea in July 2020. The examiner noted that the Veteran had been diagnosed with OSA. During the examination, the Veteran stated that he had been experiencing daytime fatigue with hypersomnolence since the early 2000s. He further reported that he had been treated with a continuous positive airway pressure (CPAP) machine, but stated that he did not tolerate or trust the equipment and, as a result, did not use it routinely. The examiner noted symptoms or signs attributable to OSA, to include persistent daytime hypersomnolence, snoring, fitful sleep, waking up gasping for air, and witnessed cessation of breathing by others. After performing a telephone interview and reviewing the evidence of record, the examiner opined that it was less likely than not that the Veteran’s diagnosed OSA was incurred in or caused by the claimed in-service injury, event, or illness. In support of his opinion, the examiner noted that the Veteran had been diagnosed with OSA in February 2016. The examiner further noted that the Veteran’s STRs showed no evidence of sleep disturbance or of any symptoms consistent with a sleep apnea condition while he was serving on active duty, and that the Veteran denied frequent trouble sleeping on his November 2002 separation report of medical history. As such, the examiner found that there was no nexus between the Veteran’s currently diagnosed OSA and a causative event during his active duty service. The examiner further opined that it was less likely than not that the Veteran’s diagnosed OSA was proximately due to, the result of, or aggravated beyond its normal progression by the Veteran’s service-connected disabilities, to include PTSD with unspecified depressive disorder, bilateral pes planus, and right knee disabilities. In this regard, the examiner stated that OSA is caused by collapse of the upper airways during sleep with resultant intermittent cessation of breathing. To this end, the examiner noted that there have been some medical research studies that show an increased incidence or correlation of OSA in individuals with PTSD but found that there have not been any studies that demonstrate direct causation or aggravation of OSA by PTSD. The examiner further noted that there was no plausible or commonly medically accepted pathophysiologic explanation as to how a musculoskeletal disorder, such as bilateral pes planus and patellofemoral syndrome of the right knee status-post partial lateral meniscectomy, or an extremity scar disorder, such as a surgical scar of the right knee, could cause upper airway collapse resulting in OSA. Rather, the examiner noted that overweight/obesity was the primary and major risk factor in developing OSA and that, at the time of his February 2016 sleep study, the Veteran’s documented body mass index (BMI) was 40, which is considered class III obesity. Moreover, with respect to aggravation, the examiner found that there was no evidence in the claims file to indicate that the Veteran’s OSA had worsened or progressed beyond its baseline level of severity or to show that it had been adversely influenced by the Veteran’s service-connected disabilities. As such, the examiner opined that it was less likely than not that the Veteran’s diagnosed OSA was proximately due to or aggravated beyond its natural progression by any of the Veteran’s service-connected disabilities. Lastly, the examiner also opined that it was less likely than not that the Veteran’s service-connected disabilities were causative for or related to his obesity. In support of his opinion, the examiner referenced an article published by the Mayo Clinic, which states that obesity is a complex problem that is caused by a variety of factors, to include genetic, behavioral, metabolic, and hormonal influences but is principally due to an energy imbalance between calories consumed in the diet and energy expended with physical activity and basal metabolism. In this regard, the examiner stated that the complexity of the problem made it impossible to identify a single underlying cause of obesity. However, the examiner noted that, while a sedentary lifestyle decreases energy expenditure, it is much easier to cause an energy imbalance leading to obesity by consuming excess calories than it is to burn the calories off with physical exercise regardless of whether or not a chronic musculoskeletal disorder exists. The examiner further noted that the Veteran had a BMI of 30 at the time of his entrance into military service, which is considered class I obesity, and stated that there are other forms of physical activity that do not require weight-bearing that the Veteran would likely be able to perform and which could replace the calorie burn that the Veteran was not able to do through weight-bearing activities. As such, the examiner opined that it was not possible to create a nexus between the Veteran’s obesity condition and his service-connected disabilities. See July 2020 C&P examination. After a review of the evidence of record, the Board finds that entitlement to service connection for OSA is not warranted. In the present case, there is sufficient evidence the Veteran meets the threshold criterion for service connection of a current disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). Specifically, private treatment records from OmniSleep Medicine Centers show that the Veteran was diagnosed with mild to moderate OSA, severe during REM sleep, in February 2016. See April 2020 Medical Treatment Record – Non-Government Facility. Accordingly, the remaining question is whether the Veteran’s OSA is related to service. In this regard, the Board finds the July 2020 VA examination report to be the most probative evidence of record. After conducting a telephone interview and reviewing the evidence of record, the examiner opined that it was less likely than not that the Veteran’s diagnosed OSA was incurred in or caused by the claimed in-service injury, event, or illness. The July 2020 VA examiner further opined that it was less likely than not that the Veteran’s diagnosed OSA was proximately due to, the result of, or aggravated beyond its natural progression by the Veteran’s service-connected disabilities, to include PTSD with unspecified depressive disorder, bilateral pes planus, and right knee disabilities, and that it was less likely than not that the Veteran’s service-connected disabilities were causative for or related to his obesity. See July 2020 C&P examination. The Board finds that the July 2020 VA examiner’s opinion is probative as it is factually supported, consistent with the other evidence of record, and included review of the claims file and relevant medical literature. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board has considered the Veteran’s contention that his OSA symptoms manifested during service. Specifically, during his August 2019 hearing, the Veteran testified that his ex-wife stated that he snored and stopped breathing while he was serving on active duty. See August 2019 Hearing Transcript, pages 1-2. However, the Board finds that the Veteran’s assertion that his OSA symptoms manifested during service is not supported by the more probative evidence of record. To this end, the Board notes that the Veteran denied frequent trouble sleeping on the November 2002 separation report of medical history, and he initially reported that he felt tired and sick all the time in October 2007, approximately four years after his separation from service. See October 2013 STR – Medical. The Board further notes that, in December 2013, the Veteran stated that he did not know whether he snored but indicated that it was unlikely because his son had not mentioned it. See September 2014 CAPRI. While the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence, the combination of these findings undermines the Veteran's credibility, and weighs against a finding that his OSA began during service. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (finding that contemporaneous evidence was more probative than history reported by claimant); see also White v. Illinois, 502 U.S. 346, 356 (1992) (finding that statements made for the purpose of medical diagnosis or treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive a proper diagnosis or treatment). If the Veteran was having trouble sleeping during service, it is reasonable to conclude that he would have reported such when specifically asked upon separation from service. The Board has also considered the Veteran’s statements that his OSA is related to his active duty service and that it was caused or aggravated beyond its normal progression by his other service-connected disabilities, to include PTSD with unspecified depressive disorder, bilateral pes planus, and right knee disabilities. However, the question of whether such a relationship exists is a complex medical issue that is far beyond the purview of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007) (providing that the question of whether lay evidence is competent and sufficient is an issue of fact that is to be addressed by the Board); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting that personal knowledge is “that which comes to the witness through the use of his senses-that which is heard, felt, seen, smelled, or tasted”). Thus, the Board concludes that the Veteran’s lay assertions are outweighed by the medical evidence of record, to include the July 2020 VA examination report and the cumulative medical evidence of record. As noted above, the examiner has training, knowledge, and expertise on which he relied to form his opinion and provided a persuasive rationale. Importantly, there is no competent medical evidence to the contrary. To the extent that Based on the foregoing, the Board finds that there is no basis for an award of service connection for OSA on a direct or secondary basis. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit-of-the-doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for service connection for OSA. The claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Justis, Attorney-Advisor 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.