Citation Nr: 21002654 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 14-12 335 DATE: January 14, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to bipolar II disorder, is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s OSA had its onset during active service, is otherwise related to service, or is caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for OSA, to include as secondary to bipolar II disorder, have not been 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 in the United States Army from December 1971 to March 1972. In August 2018, the Board of Veterans’ Appeals (Board) denied the Veteran’s claim for service connection for OSA. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In August 2019, the Court issued an order granting a July 2019 Joint Motion for Partial Remand (JMPR). In January 2020, the Board remanded the sleep apnea claim, among others, for further development, consistent with the JMPR, and the Veteran underwent a VA examination in February 2020 for evaluation of his OSA. The Board again remanded the issue in September 2020 because the Board found that the February 2020 examiner did not fully address the Veteran’s theory of secondary service connection and aggravation due to the Veteran’s bipolar II disorder, his use of psychotropic medication, or his use of demerol during service. The claims file was reviewed by a separate VA clinician in October 2020. There has been substantial compliance with the remand directives and the matter is again before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran has reported a history of sleep apnea with symptoms of snoring, difficulty sleeping, awakening gasping for breath, having only short periods of sleep, episodes of stopping breathing, and tiredness during the day. He has alleged that his condition may be attributable to his service-connected bipolar II disorder, to include medication that he takes for bipolar II disorder, as well as other medication for separate conditions dating back to the Veteran’s time in service. Service Connection In general, under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence 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, 1166-67 (Fed. Cir. 2004); 38 U.S.C. § 5103(a). Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). A claim for secondary service connection generally requires competent evidence of a causal relationship between the service-connected disability and the nonservice-connected disease or injury. Jones v. Brown, 7 Vet. App. 134 (1994). There must be competent evidence of a current disability; evidence of a service-connected disability; and competent evidence of a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). With regard to the matter of establishing service connection for a disability on a secondary basis, the United States Court of Appeals for Veterans Claims (Court) has held that there must be evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Additionally, when aggravation of a nonservice-connected disability is proximately due to or the result of a service-connected condition, such disability shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against a finding of service connection for sleep apnea. The reasons follow. During the Veteran’s months in service, treatment records do not show the diagnosis of or complaints relating to OSA. Although the Veteran’s service discharge related to a long history of migraines and he was noted to experience anxiety, the Veteran had normal clinical evaluations of the nose and mouth and throat on separation examination in February 1972 and he documented that he was in good health. Treatment notes indicated that the Veteran had been using demerol. After discharge, the evidence of record does not demonstrate evidence of OSA for more than 30 years. The evidence of record indicates that the Veteran was suspected of having OSA in early 2006 and received a diagnosis after completing a sleep study in 2008. This is sufficient to establish the presence of a current disability and treatment notes continue to report the Veteran manages his OSA with the use of a CPAP. The Veteran has also received treatment for a number of other disabilities and has been prescribed psychotropic medication. However, the preponderance of the evidence is against a nexus between the present disability and an in-service disease or injury and against a nexus between the present disability and the service-connected bipolar II disorder. The Veteran underwent a VA examination in February 2020 following the January 2020 Board remand. The examiner stated that the Veteran’s diagnosed OSA was less likely than not incurred in or caused by an in-service injury, event or illness, stating that there is no specific evidence, gathered from the Veteran, noted on physical exam, or cited in the records, to show that OSA was an ongoing chronic condition during the Veteran’s military service years. The examiner further stated that the Veteran’s diagnosed OSA is less likely than not proximately due to, the result of, or aggravated by the Veteran’s bipolar II disorder. The examiner stated that there is no specific evidence, gathered from the Veteran, noted on physical exam or cited in the records to show that OSA is proximately due to, the result of, or aggravated by the Veteran's bipolar II disorder. Pursuant to the September 2020 Board remand, the claims file was reviewed by a separate VA clinician in October 2020. The clinician opined that the Veteran’s OSA was less likely than not incurred in or caused by an in-service injury, event, or illness. The clinician stated that all available medical records and remand documents were reviewed, indicating that the service treatment records were negative for diagnosis of OSA during active duty service and that a nexus was not established. The clinician also indicated that it was less likely than not that the Veteran’s OSA is proximately due to a service-connected condition or was aggravated beyond its natural progression by a service-connected condition, to include the use of any medication relating thereto. The clinician stated that OSA is an anatomical condition, in which the structures of the upper airway relax/prolapse during sleep, resulting in the temporary occlusion of the airway. The clinician stated that while some studies have shown that OSA and mental health conditions, to include bipolar II disorder, can coexist, there is no credible medical evidence of a causative link or to support the notion that the anatomical condition can be aggravated by mental health conditions such as bipolar II disorder. The clinician stated that there is also no evidence that OSA can be aggravated by any medication, including demerol. The clinician concluded that there is no pathophysiology to support a mechanism for aggravation in this instance, citing to medical literature on the pathophysiology of OSA in adults. The weight of the evidence is against an award of service connection for OSA on both direct and secondary bases. The record does not document objective evidence of OSA until more than 30 years following the Veteran’s discharge from service. The evidence also does not support a link between the Veteran’s OSA and the service-connected bipolar II disorder or his history of medication use. To the extent that the Veteran believes his OSA is related to service, he is not competent to provide a nexus opinion, as that requires medical expertise. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran’s own opinion is nonprobative evidence. Whereas, the October 2020 VA clinician is a medical expert who was able to review the evidence of record and provided a reasoned rationale for her conclusions, supported by medical literature and evidence in the file. Accordingly, her opinion is highly probative. While the February 2020 opinion was insufficient as to the secondary theory of entitlement, that examiner provided an opinion on direct service connection, which was based upon an in-person examination and the evidence of record. Thus, the February 2020 opinion is probative in this regard. At the present time, there is no competent evidence to weigh against the negative nexus opinions provided in February 2020 and October 2020 that establish that OSA did not have its onset in service and is not caused or aggravated by the service-connected bipolar II disorder. As the preponderance of the evidence is against the claim for service connection for sleep apnea, the benefit of the doubt doctrine is not for application, and the Veteran’s claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Wonderling, 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.