Citation Nr: 21002726 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 16-48 090 DATE: January 14, 2021 ORDER Service connection for obstructive sleep apnea, to include as secondary to a mental health condition is denied. REMANDED Entitlement to service connection for tinnitus is remanded. FINDING OF FACT The Veteran’s diagnosed sleep apnea did not have its onset during active service, is not secondary to his mental health condition, and is not otherwise related to active service. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea, to include as secondary to a mental health condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § § 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1988 to April 1991, including service in Southwest Asia, with additional service in the National Guard from November 1992 to October 1996. This case is before the Board of Veterans’ Appeals (Board) on appeal from May 2015 and January 2016 Department of Veterans Affairs (VA) Regional Office (RO) rating decisions. In the May 2015 rating decision, the RO denied the Veteran’s claim of service connection for tinnitus, and in the January 2016 rating decision, the RO denied the Veteran’s claim of service connection for obstructive sleep apnea. In March 2019, the Veteran testified at a videoconference hearing at the RO before the undersigned Veterans Law Judge (sitting in Washington, D.C.). A transcript of that proceeding is of record. In November 2019, the Board remanded the case to the RO for further development and adjudicative action. 1. Entitlement to service connection for obstructive sleep apnea The Veteran contends that his obstructive sleep apnea is related to active service, to include as secondary to a mental health condition. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 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”- the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases may also be established based upon a legal “presumption” by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected condition. 38 C.F.R. § 3.310. While VA treatment records indicate that the Veteran has a diagnosis of and post-service treatment for sleep apnea, there is no competent evidence of record linking the Veteran’s claimed condition to service. The evidence does not indicate that the Veteran had sleep apnea or symptoms of sleep apnea during service or shortly after separation from service. STRs indicate no related complaints, treatment, or diagnoses. The Veteran underwent a VA examination for sleep apnea in May 2015. The VA examiner opined that obstructive sleep apnea is less likely than not related to a specific exposure event experienced by the Veteran during service in Southwest Asia. The examiner’s rationale was that the Veteran is an obese male with central fat distribution, BMI 38. He stated that the male sex, obesity, and central fat distribution are significant risk factors for OSA. In January 2016, the Veteran’s private physician, Dr. K.M. noted an Axis III diagnosis of sleep apnea. In a medical opinion received in June 2016, Dr. K.M. opined that there is a correlation of PTSD and sleepiness. Dr. K.M. did not provide a rationale for this opinion. The Veteran underwent a VA examination for sleep apnea in May 2016. The VA examiner stated that sleep apnea is not in any case caused by mental health issues either PTSD, panic attack, or any other mental health problems. It is related to physical obstruction of the airway and/or neurological issues which are not directly caused by psychological or psychiatric illnesses. The examiner stated that, in summary, unless there are other questions which are not apparent to the examiner, he found that there is no relationship to the substantiated diagnosis of sleep apnea and the Veteran’s military service. The examiner stated that regarding the difference of opinion between Dr. K.M. and the VA examiner, this most likely needs to be resolved with another VA examination. In a May 2019 private treatment record, Dr. K.M. stated that it is at least as likely as not that the Veteran’s diagnosis of sleep apnea may be diagnosed as service-connected related to his PTSD. In a May 2019 private treatment record, she stated that it is at least as likely as not that service-connected fibromyalgia can be diagnosed as the same disease as sleep apnea even with overlapping and similar symptoms. Again, there is no rationale for these opinions. During the March 2019 Board hearing, the Veteran testified that no one has ever told him that his sleep apnea may be secondary to his posttraumatic stress disorder but that he thinks his doctor may have suggested it. He stated that his doctor knows that he has sleep issues because he does not sleep well in the first place but that it seems that VA thinks the only reason for his sleep problems is that he has gained weight. In January 2020, the Veteran underwent a VA examination for sleep apnea. The examiner opined that the claimed condition is less likely than not proximately due to or the result of his service-connected condition. The examiner stated that the OSA is less than 50 percent likely to have been aggravated by the Veteran’s underlying PTSD and fibromyalgia. The examiner opined that the Veteran’s sleep apnea is a separate condition and unrelated to fibromyalgia or a psychiatric disorder such as PTSD. The examiner’s rationale was that sleep apnea risk factors are advancing age, male gender, obesity, and craniofacial morphology or upper airway soft tissue abnormalities. Additional factors identified in some studies include smoking, nasal congestion, menopause, and family history. In both males and females, the prevalence of obstructive sleep apnea progressively increases as the body mass index (BMI) and associated markers, such as neck circumference, waist-to-hip ratio) increase. The examiner cited to multiple studies, noting findings including that a 10 percent increase in weight was associated with a six-fold increase in risk of incident OSA and that smoking appears to increase the risk of OSA or at least aggravate preexisting symptoms. The examiner stated that while a variety of substances and medications, including alcohol, benzodiazepines, and narcotics, may exacerbate OSA, a causative link is unproven. Additionally, obesity is a multi-faceted disease state and a specific cause cannot be elicited to any level of certainty. Thus, a nexus is not established to PTSD or fibromyalgia as obesity and neck circumference are the main risk factors in this Veteran. The Board has considered the Veteran’s contentions but finds the Veteran’s STRs and medical evidence of record to be highly probative. As noted above, the Veteran’s private physician provided a positive nexus opinion; however, she did not provide a rationale to clearly explain her opinion, and thus, it is afforded low probative value. According to the competent and probative evidence of record, the Veteran’s sleep apnea did not have its onset during service and is not otherwise related to service or to his service-connected acquired psychiatric condition. In weighing the evidence of record, the Board finds that the Veteran’s contentions are outweighed by the competent and probative medical evidence of record. The VA medical evidence of record is sufficient to decide this claim and it does not indicate a link between the Veteran’s sleep apnea and service or a service-connected disability. Therefore, the Board finds that the preponderance of the evidence is against a grant of service connection for sleep apnea, to include as secondary to his service-connected acquired psychiatric disorder or fibromyalgia. Hence, there is no reasonable doubt to be resolved as to this issue, and the appeal must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for tinnitus As previously stated in the November 2019 Board remand, the Veteran underwent VA examinations for tinnitus in April 2015 and August 2016. In a May 2019 private treatment record, Dr. K.M. stated that it is at least as likely as not that service-connected fibromyalgia can be diagnosed as the same disease as tinnitus even with overlapping and similar symptoms. Each of the VA examiners opined that the Veteran’s tinnitus is less likely than not caused by or a result of military noise exposure. However, neither VA examiner addressed whether the Veteran’s tinnitus is related to his service-connected fibromyalgia, and the opinion of Dr. K.M. is unclear and vague in this regard. Therefore, the Board remanded the issue to afford the Veteran a new examination and opinion. Per the November 2019 Board remand instructions, the Veteran was afforded a VA examination in April 2020 for tinnitus. The Board directed that the VA examiner provide an opinion as to whether it is at least as likely as not that the Veteran’s tinnitus is caused or aggravated by his service-connected fibromyalgia, or another service-connected disability and to address whether his tinnitus is part and parcel to the Veteran’s service-connected fibromyalgia. The examiner stated that there is no evidence that his tinnitus is directly related to his military service as has been reported on several previous examinations and therefore it is not found to be related to his fibromyalgia or some other service-connected condition; there is no correlation of his tinnitus to military service. However, the examiner stated that the relationship between tinnitus and fibromyalgia is beyond the scope of his practice as an audiologist and would require the expertise of an otolaryngologist who specializes in neurological otology. The examiner stated that, to the best of his “knowledge and experience, which is NONE regarding fibromyalgia and tinnitus, there is NO correlation between the two conditions.” Thus, the April 2020 VA medical opinion regarding the relationship between tinnitus and fibromyalgia is inadequate as the examiner called into question his own authority and qualifications to address any possible connection between tinnitus and fibromyalgia. Accordingly, an additional medical opinion by an appropriate examiner who can adequately address the nexus question is warranted. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The matter is REMANDED for the following action: 1. Obtain an addendum opinion from an otolaryngologist, if possible, or some other qualified examiner, but not an audiologist, who can adequately address the nature and etiology of the Veteran’s tinnitus, to include whether there is any relationship between the Veteran’s tinnitus and his fibromyalgia. The examiner must review the claims file in conjunction with the examination. Any tests or studies deemed necessary should be conducted, and the results should be reported in detail. (a.) The examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s tinnitus is caused or aggravated by his service-connected fibromyalgia, or other service-connected disability. (b.) The examiner must address whether the Veteran’s tinnitus is part and parcel to the Veteran’s service-connected fibromyalgia (or other service-connected disability), or, whether the Veteran’s tinnitus is a separate condition, warranting a disability rating separate from the rating for fibromyalgia. The examiner must support any opinion rendered with a detailed rationale. If the examiner cannot provide the above opinion, the examiner is advised that he/she must explain why the requested opinion cannot be provided. (Continued on the next page)   The term “at least as likely as not” does not mean within the realm of possibility, but rather that the evidence both for and against a conclusion is so evenly divided that it is as sound to find in favor of a certain conclusion as it is to find against it. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Labi, 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.