Citation Nr: 21003751 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 17-50 728 DATE: January 22, 2021 ORDER Entitlement to service connection for obstructive sleep apnea as due to service-connected disease or injury is denied. FINDING OF FACT Obstructive sleep apnea is not caused or aggravated by service-connected disease or injury, to include posttraumatic stress disorder. CONCLUSION OF LAW Obstructive sleep apnea is not proximately due to or the result of (causation or aggravation) a service-connected disease or injury. 38 C.F.R. § 3.310 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June to August 1988, January to March 1991, February to October 2000, August 2005 to December 2006, April 2007 to June 2008, and August 2008 to November 2009. The appeal was last before the Board in September 2019, when the Veteran’s claim for entitlement to service connection for obstructive sleep apnea was denied. The Veteran appealed the Board’s denial to the United States Court of Appeals for Veterans Claims (Court). By Order dated June 2020, the Court vacated part of the Board’s September 2019 decision and remanded the matter to the Board for compliance with the instructions included in the June 2020 Joint Motion for Partial Remand (JMPR) by the parties. Specifically, the Court left in place the Board’s decision to deny service connection for obstructive sleep apnea on a direct basis, and only vacated the Board’s decision to deny service connection for obstructive sleep apnea based on secondary service connection and the Veteran’s PTSD. Accordingly, this decision will only address entitlement to service connection for obstructive sleep apnea secondary to PTSD. Service Connection Service connection is warranted for disability which is proximately due to or the result of a service-connected disease or injury. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice-connected disease or injury that 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 disease or injury will be service connected. However, VA will not concede that a non-service-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. Part 4 ) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b). Entitlement to service connection for obstructive sleep apnea as due to service-connected disease or injury The Veteran asserts that his obstructive sleep apnea (OSA) is secondary to his service-connected posttraumatic stress disorder (PTSD). First, the Board finds that there is a current disability. See Wallin, 11 Vet. App. 509, 512 (1998); see also Allen, supra. The Veteran was diagnosed with obstructive sleep apnea following a June 2015 sleep study. Second, the Board finds that there is evidence of a service-connected disability. See Wallin, 11 Vet. App. 509, 512 (1998); see also Allen, supra. The Veteran is service connected with PTSD. Therefore, the remaining question for the Board is whether the Veteran’s PTSD caused or aggravated his OSA. June 2016 VA treatment records reflect that the Veteran’s BMI was 31 and the treating physician discussed the health risks of being overweight, to include sleep apnea. A VA medical opinion was obtained in December 2017 that provided significant insight into obstructive sleep apnea and nexus opinions for the Veteran’s obstructive sleep apnea. The VA examiner explained that the reported snoring and gasping for breath during service are nonspecific signs and symptoms which are not pathognomonic for OSA. He clarified that OSA is not a diagnosis based on nonspecific signs or symptoms, but a diagnosis based on objective polysomnogram (PSG). The December 2017 VA examiner opined that the Veteran’s obstructive sleep apnea is at least as likely as not (50 percent or greater probability) aggravated beyond its natural progression by his post-service weight gain, obesity, age, and gender. In support of his opinions, the examiner included an article from UpToDate, a review of the most current medical literature, which discusses sleep apnea, its symptoms, and risk factors for the disorder. The December 2017 VA examiner opined that it is less likely than not (less than 50 percent probability) that the Veteran’s OSA is proximately due or has been aggravated by the Veteran’s service-connected PTSD diagnosis. The examiner provided that there is no causal or aggravation nexus between snoring and gasping for breath and his service-connected PTSD. The examiner also stated that there is no pathophysiologic relationship between PTSD and OSA and no mechanism for action for cause or aggravation of OSA by PTSD. The examiner noted that PTSD is not listed as a risk or aggravation factor for OSA in UpToDate, the most current medical literature. The Board reviewed the lay evidence, outpatient treatment records, and examination reports relevant to PTSD. There are no lay contentions or clinical assessments that the Veteran’s overweight status was caused or aggravated by PTSD as an intermediate step to aggravation of OSA. The Board finds the December 2017 VA examination report to be highly probative. Pursuant to the June 2020 JMPR, the Board emphasizes that the December 2017 VA examiner provided sufficient rationale in his conclusion that the Veteran’s OSA was less likely than not caused or aggravated by PTSD. The examiner explained the pathophysiological components of OSA and concluded that there was no mechanism of action for cause or aggravation of OSA by PTSD. Instead, the examiner concluded that the “cause and aggravation of the Veteran’s OSA is his post service weight gain/obesity, age and gender” and not PTSD. In support this this conclusion, he stated that PTSD was not “listed as a risk or aggravation factors for OSA in UpToDate (a review of the most current medical literature).” The Board has considered the Veteran’s contentions that PTSD caused or aggravated his PTSD. While the Veteran is competent to describe symptoms felt or observed, he is not competent to determine the underlying pathology or diagnose a disability such as sleep apnea where the cause of the disability cannot be readily observed by lay persons. Jandreau v. Nicholson, 492 F. 3d 1372 (2007). The most probative evidence, the opinion of the 2017 VA examiner, is against the claim. The Board finds that the evidence of record does not show a nexus (cause or aggravation) of OSA by service-connected PTSD. The December 2017 VA examiner found that the Veteran’s obstructive sleep apnea is at least as likely as not (50 percent or greater probability) aggravated beyond its natural progression by his post-service weight gain, obesity, age, and gender. In support of his opinion, he included text from UpToDate, which discusses sleep apnea, symptoms, and risk factors for the disorder. The examiner used sufficient rationale to justify his conclusion that PTSD and OSA are unrelated. The Veteran has not provided any competent evidence to the contrary. Based on the foregoing, without probative evidence that the Veteran’s OSA is due to or has been aggravated by his PTSD, entitlement to secondary service connection for OSA is denied. In summary, the Board finds that the evidence fails to show that the Veteran’s OSA was caused or aggravated by a service-connected disability. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The appeal is denied. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Fitzgerald, 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.