Citation Nr: 21003494 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 13-02 880 DATE: January 21, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s obstructive sleep apnea (OSA), was caused or aggravated by his service-connected psychiatric disorder, or that it is otherwise etiologically related to his military service. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected psychiatric disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1981 to December 1993. He served under honorable conditions in the United States Air Force during the Peacetime and the Gulf War Era, to include foreign service in Southwest Asia. He was awarded numerous medals to include, the National Defense Service Medal, the Southwest Asia Service Medal with two Bronze Stars, the Air Force Outstanding Unit award with Valor Device with one Silver Leaf Cluster, and the Kuwait Liberation Medal. The Board thanks the Veteran and his family for his service to our country. This matter is before the Board of Veteran’s Appeals (Board) from a December 2011 rating decision (RD) by the Department of Veteran Affairs (VA) Regional Office (RO). In February 2016, the Veteran testified before the undersigned Veterans Law Judge at a Board videoconference hearing. A transcript of the hearing is of record. The Veteran waived RO consideration of any and all new evidence added to his file. At the hearing, a 60-day extension was granted. New evidence was submitted on or after the hearing date. In September 2016 and June 2020, this matter was previously before the Board at which time it was remanded to the Agency of Original Jurisdiction (AOJ) for further development. In the most recent Board remand, the issue that was remanded included entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected psychiatric disorder. Specifically, the remand directives required the AOJ to: (1) obtain any outstanding VA and non-VA medical records for the Veteran’s OSA and (2) obtain multiple medical opinions and if necessary, schedule an examination using alternative techniques to an in-person examination. Per the Board’s remand directives, the AOJ obtained any outstanding VA and non-VA treatment records. Additionally, the AOJ scheduled the Veteran for an examination regarding his OSA, which was conducted by telephone interview on August 10, 2020, and obtained multiple medical opinions on August 10, 2020. Thus, the Board finds that there has been substantial compliance with its June 2020 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998); Also see C&P Exam dated August 2020.   Service Connection – Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. Establishing direct service connection generally requires competent evidence of three elements: (1) a current 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); 38 U.S.C. §§ 1131, 1110; 38 C.F.R. § 3.303. Alternatively, a veteran can receive compensation via secondary service connection, which can be established when a disability is shown to be proximately due to or the result of a service-connected disease or injury. To be awarded secondary service connection, 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. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310. Service connection may also be established for a chronic disability resulting from an undiagnosed illness that manifested either during active service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more not later than December 31, 2021. 8 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(1)(i). Service connection may also be established for a Persian Gulf veteran who exhibits objective indications of a “qualifying chronic disability,” a chronic disability resulting from an undiagnosed illness, or a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or any diagnosed illness that the Secretary determines warrants a presumption of service connection. 38 U.S.C. § 1117. An “undiagnosed illness” is one that by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317 (a)(1)(ii). For purposes of the applicable statute, the term “medically unexplained chronic multi-symptom illness” means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317 (a)(2)(ii). For purposes of this section, “objective indications of chronic disability” include both “signs,” in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317 (a)(3). Signs or symptoms that may be manifestations of an undiagnosed illness or a medically unexplained chronic multi-symptom illness include, but are not limited to, (in pertinent part): fatigue, headache, muscle pain, joint pain, neurological signs, neuropsychological signs, respiratory signs, gastrointestinal signs, and abnormal weight loss. 38 C.F.R. § 3.317 (b). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, and experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises and statements contained in authoritative writings, such as medical and scientific articles and research reports and analyses. 38 C.F.R. § 3.159(a)(1). Medical opinions must contain conclusions with a reasoned medical explanation based on supporting data. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 1. Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected psychiatric disorder The Veteran contends that his obstructive sleep apnea (OSA) is secondary to his service-connected psychiatric disorder. See Appellate Brief dated November 2020; Hearing Testimony dated February 2016. The record shows that the Veteran’s diagnosis of obstructive sleep apnea (OSA) was confirmed in 2018. Thus, a current disability exists. Shedden, 381 F.3d at 1163; 38 C.F.R. § 3.303; Also see C&P Exam dated September 2019. The Veteran is also service-connected currently for a mood disorder. Service treatment records (STRs) indicate that during a 1990 clinic visit, the Veteran complained of sleep disturbance, yet he was able to get five to eight hours per night. He also reported that he may drink two beer to help him sleep. Thus, the record reflects an in-service event. Shedden, 381 F.3d at 1163; 38 C.F.R. § 3.303; Also see STR dated July 2014. The question for the Board is whether a causal relationship or nexus exists between the Veteran’s current sleep apnea and his active military service or his service-connected psychiatric disorder. VA treatment records show that the Veteran had numerous complaints of some sort of sleep disturbance. For example, in June 2010, in an initial PTSD examination, the examiner noted persistent symptoms of hyperarousal associated with the trauma experienced by the Veteran include difficult falling and staying asleep five to seven hours a night “not quality.” See Capri (406pgs) dated June 2019 In his February 2016 Board hearing, the Veteran testified that he rips off his sleep apnea mask in his sleep, thinking it is a gas mask and he was being attacked by chemical warfare. He also testified that he believes that his sleep apnea is due to his psychiatric disorder. See Hearing Transcript dated February 2016. Additionally, VA treatment records show that in July 2017, the Veteran stated that he feels that the medication “Prozosin” helps to reduce the intensity of nightmare activity and he is able to fall back asleep and he can startle awake from dreams unrelated to trauma. In December 2018, the provider assessed that the Veteran with a history of PTSD with … “sleep disturbance overall well controlled on “SSRI.” Also, in April 2019, the Veteran states he has been sleeping well and has had increased adherence to “PAP machine.” See Capri (826pgs) dated June 2019. An August 2019 Disability Benefit Questionnaire (DBQ) for sleep apnea, the Veteran was diagnosed with obstructive sleep apnea (OSA). The examiner noted that he was diagnosed with OSA in 2012 after a sleep study was conducted; he was treated with C-PAP, in which he uses the C-PAP most nights, but usually not a full night; and he has frequent nightmares. See C&P Exam dated September 2019. In August 2019, the RO obtained several medical opinions, based on the August 2019 VA examination for sleep apnea. While the Board found that the August 2019 medical opinions were inadequate with respect to whether the Veteran’s OSA was a medically unexplained chronic multisymptom illness and with respect to whether the Veteran’s OSA was caused or aggravated by his service-connected psychiatric disability, the Board did not otherwise find the medical opinions inadequate. The August 2019 physician opined that the Veteran’s OSA was less likely than not incurred in or caused by the Veteran’s military service. He reasoned that, because the Veteran was first diagnosed with OSA years after his discharge from service, and because there was nothing in the Veteran’s service treatment records to show that sleep apnea was present in service. There is no evidence to show, and the Veteran does not contend, that OSA was incurred in, or is otherwise related to, service. Further, as the Veteran’s OSA is a diagnosed disorder, service connection is not warranted on the basis that it is an undiagnosed illness related to military service in the southeast Asia. In an August 2020 Disability Benefit Questionnaire (DBQ) for sleep apnea, the Veteran was diagnosed with OSA. In the examination report, the Veteran reported that details of onset included non-restful sleep with daytime fatigue, sleep disturbances due to nightmares and a mood disorder, and the C-PAP mask reminded him of wearing a gas mask during service in the Persian Gulf. However, he requested an N-20 nasal pillow mask several months ago which he reported has improved his compliance and he is able to wear the mask 6-8 hours on some nights. For course since onset, the Veteran reported he still has occasional nighttime awakenings due to discomfort and re-positioning of the mask and he takes naps several times a week. See C&P Exam dated August 2020. In August 2020, the examiner provided multiple medical opinions based on the August 2020 VA examination. The examiner concluded that it is less likely than not (less than 50 percent probability) that the signs and symptoms of the Veteran’s current OSA disability was incurred in or caused by a medically unexplained chronic multi-symptom illness (MUCMI) related to the Veteran’s military service in the Persian Gulf. For rationale, the examiner opined that OSA is a disease with a clear diagnosis and etiology; sleep apnea has a clear etiology which is due to the obstruction of soft tissue of the upper airway during the relaxation of sleep; and the condition can be accurately diagnosed by a polysomnography, or sleep study, which measures the apnea/hypopnea episodes. See C&P Exam (page 2) dated August 2020. Further, the August 2020 examiner concluded that it is less likely than not (less than 50 percent probability) that the Veteran’s current OSA disability is proximately due to or the result of the Veteran’s service-connected psychiatric disorder. For rationale, the examiner opined that while the medical literature has shown an association between mood disorders and OSA, it “has not established a causal relationship.” Also, the examiner noted that the Veteran’s testimony regarding his sleep symptoms and sleep disturbance related to his mood disorder were considered; that sleep disturbance and altered sleep patterns are common among mood disorders; and that there is an overlap between the sleep disturbance due to OSA and mood disorders. However, the examiner opined that “there is no scientific basis for the etiology of sleep apnea due to disrupted sleep or the sleep symptoms described by the Veteran.” See C&P Exam (page 3) dated August 2020. Additionally, the examiner found “there is no objective measure for a worsening of the OSA beyond its natural progression, as the Apnea-Hypopnea Index is clearly improved with C-PAP use from 19/hr to 2.1/hr.” The examiner noted that the “AHI = 19/hr on initial sleep study dated 03/10/12 and that the data download from C-PAP machine data chip on “02/07/19” covering period from “5/21/2012 – 5/21/2019[] AHI = 2.1 hr.” Further, the examiner opined that while compliance with C-PAP use was noted and the Veteran has stated that this is due to PTSD, the adjustment to the use of the C-PAP masks is a common issue with the treatment of OSA. However, there are other treatment options, such as the use of nasal pillow masks that would not recreate the sensation of wearing a gas mask, which the Veteran reported wearing the C-PAP mask triggers. Also, the examiner opined that the Veteran requested such a mask recently, which has helped improve his compliance with use of the C-PAP. In addition, See C&P Exam (page 4) dated August 2020. The Board acknowledges that the examiner in providing the August 2020 secondary aggravation opinion did not indicate his overall conclusion as to whether or not the Veteran’s claimed OSA was at least as likely as not (50 percent probability or greater) aggravated beyond its natural progression by his service-connected psychiatric disorder. However, in Monzingo, the Court has held that it is mindful that neither a single opinion, nor an excerpt of a single opinion, should be considered by itself. Rather, “medical reports are to be read as whole, taken into consideration the history, tests, and examinations upon which the report is based.” Monzingo v. Shinseki, 26 Vet. App. 97, 109 (2012). Further, in Acevedo, the Court has held that even if a portion of an opinion might seem problematic when read in isolation, “the Board is permitted to draw inferences based on the overall report.” Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012). Thus, the Board finds that given these legal principles and the detailed rationale that is included in the opinion, the 2020 August secondary aggravation opinion is adequate for VA purposes. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). See C&P Exam (page 4) dated August 2020. The Board finds that, with the limitations noted above, the 2019 and 2020 VA medical opinions with respect to the Veteran’s OSA are entitled to great probative weight. In this regard, the opinions were provided following a review of available records in conjunction with a telephone interview in 2020 with the Veteran. The examiner discussed the Veteran’s medical history regarding his OSA, psychiatric disorder, and use of the C-PAP machine, referenced medical literature, provided conclusive opinions, and offered clear reasoning explaining why the Veteran’s current OSA is not related to serve, or caused by or aggravated by his service-connected psychiatric disorder. Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302-04 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The opinions are probative evidence in this matter and, in the absence of probative evidence to the contrary, highly persuasive. Likewise, the Veteran is competent to report having experienced non-restful sleep with daytime fatigue and sleep disturbances due to nightmares. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although lay persons are competent to provide opinions on some medical issues, the etiology of sleep apnea falls outside the realm of common knowledge of a lay person. Id.; Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Accordingly, the Veteran’s opinion as to the etiology of his sleep apnea is not competent medical evidence. The Board finds that the Veteran’s current OSA disability was not incurred or otherwise related his active military service; is not an undiagnosed illness or a MUCMI; and was not caused or aggravated by his service-connected psychiatric disability. 38 U.S.C. § 1117; 38 C.F.R. §§ 3.303, 3.317(a)(1). The Board acknowledges that a Veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence (equipoise) on the merits. But, because the preponderance of the evidence is against the Veteran’s   claim, the benefit of the doubt rule is not applicable in this case. This claim on appeal, therefore, is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990); 38 U.S.C. § 5107(b), 38 C.F.R. § 3.102, 4.3, 4.7. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. D. Hayes 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.