Citation Nr: 21004499 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 16-37 687 DATE: January 27, 2021 ORDER Service connection for sleep apnea, to include as secondary to a service-connected disability, is denied. FINDING OF FACT The Veteran’s sleep apnea is not secondary to service-connected hypertension, and is not otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for sleep apnea due to service or service-connected disease or injury are not 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 from November 1985 to February 1995. In a November 2018 decision, the Board granted claims for service connection for bilateral hearing loss and tinnitus, and remanded the claim for service connection for sleep apnea for additional development. In August 2020, the Board remanded the claim for compliance with the prior remand. Service Connection—Sleep Apnea Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for disability that is proximately due to or the result of a service-connected disability. 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 disability, and not due to the natural progress of the nonservice-connected disease or injury, will be service connected. 38 C.F.R. § 3.310(b). Thus, service connection is permitted not only for disability caused by a service-connected disability, but also for the degree of disability resulting from aggravation by a service-connected disability. In November 2015, the Veteran filed a claim for service connection for sleep apnea. A January 2016 rating decision denied service connection for sleep apnea on a direct service incurrence basis. In a May 2016 notice of disagreement, the Veteran asserted that his sleep apnea is secondary to his service-connected hypertension. He cited a Johns Hopkins University study that confirmed a possible connection between sleep apnea and hypertension. Service treatment records do not show any complaints, findings, or diagnoses of sleep apnea. VA medical records show that the Veteran underwent a sleep study in August 2015, at which time he was diagnosed with obstructive sleep apnea. In a June 2016 medical opinion, a VA examiner stated that there were no signs or symptoms of sleep apnea in the Veteran’s service treatment records and that the Veteran asserts that his sleep apnea is secondary to his hypertension. The examiner observed that sleep apnea is an anatomical/physiological disorder most commonly caused by airflow obstruction from the oropharynx to the lungs that can be caused by either enlargement of the neck muscle mass which obstructs airflow when supine or weakness of the posterior pharynx muscles which prevents keeping the airway open when supine. The examiner then stated that hypertension bears no relationship or nexus to the etiology of sleep apnea as noted above. The examiner concluded that the Veteran’s sleep apnea is not secondary to his hypertension. In a September 2019 medical opinion, another VA examiner stated that there is no objective evidence of sleep apnea while in service. The examiner noted that sleep apnea is diagnosed by sleep study and that a sleep study was not conducted until 2015, many years after service. The examiner concluded that the Veteran’s sleep apnea was not incurred in, or caused by, service. The examiner also stated that sleep apnea is not related to hypertension as sleep apnea is a disorder characterized by narrowing or collapse of the pharyngeal airway during sleep caused by anatomical variations in the craniofacial features and/or neck. The examiner reported that the medical literature does not show that hypertension causes sleep apnea and that hypertension does not affect the craniofacial features or neck. The examiner observed that there is no evidence of aggravation beyond natural progression by the hypertension. The examiner specifically concluded that the Veteran’s sleep apnea was not caused, or aggravated, by his hypertension. In a September 2020 medical opinion, another VA examiner stated that sleep apnea is a common sleep-related breathing disorder characterized by repetitive episodes of apnea or reduced inspiratory airflow due to upper airway obstruction. The examiner stated that people with sleep apnea are often obese and have an increased prevalence of numerous other cardiovascular risk factors, including hypertension. However, whether sleep apnea lies directly along the causal pathway or is linked through common comorbidities such as obesity is not clear. The examiner stated that hypertension does not obstruct the upper airways and therefore cannot lead to sleep apnea and that sleep apnea can only be aggravated by more obstruction of the upper airways such as an increase in weight or size of tongue, smaller airway, or a larger neck. The examiner concluded that the Veteran’s sleep apnea was not caused or aggravated by his hypertension. Lastly, the examiner reported that the Johns Hopkins University study found that people who suffer from moderate to severe sleep apnea were at increased risk of having high blood pressure. The examiner then stated that the study only supports what is currently believed in the medical community, that undiagnosed or poorly treated sleep apnea can lead to cardiovascular diseases such as hypertension, not that hypertension can lead to sleep apnea. In a sleep apnea disability benefits questionnaire received in November 2020, a private physician acknowledged the Veteran’s history of having sleep apnea since the late 1980s and the diagnosis of sleep apnea from the August 2015 sleep study. The physician indicated that the Veteran’s hypertension was attributable to his sleep apnea. In this regard, the Board notes that the Veteran does not assert, and the record does not show, that his sleep apnea had its onset during his active service. Service treatment records do not show any complaints, findings, or diagnoses of sleep apnea. There is no objective evidence of sleep apnea until the August 2015 VA medical record, over 20 years after separation from active service. There is no probative evidence of a link between his sleep apnea and any injury or disease in service. Thus, the Board finds that the Veteran’s sleep apnea is not related to an in service injury or disease. In a statement received in August 2016, the Veteran’s former wife stated that she was married to the Veteran for about six years starting in December 1989 and that he would routinely snore and make choking sounds during sleep. While the Board appreciates the wife’s statement, it is a recollection of events that happened over 25 years earlier and is not supported by the objective evidence of record, including any from that time period. Also, as indicated by the September 2019 examiner, sleep apnea can only be diagnosed by a sleep study, which in the Veteran’s case was not performed until 20 years after his discharge from active service. As such, the Board finds the former wife’s statement to be of little probative value as to whether the Veteran actually had sleep apnea at that time. Hayes v. Brown, 9 Vet. App. 67 (1996). Moreover, the Board reiterates that Veteran himself is not asserting that his sleep apnea began during active service but rather that it is secondary to his hypertension. Turning to the Veteran’s assertion that his sleep apnea is secondary to his service-connected hypertension, every VA examiner has opined that his sleep apnea was not caused or aggravated by his service-connected hypertension. All of the examiners provided rationale that included the anatomical and physiological bases of the etiology of sleep apnea. Of particular note, the September 2020 examiner discussed the Johns Hopkins University study cited by the Veteran but pointed out that the study only found that sleep apnea can lead to hypertension, not that hypertension can lead to sleep apnea. Thus, the study does not support the Veteran’s assertion that his sleep apnea is secondary to his hypertension. Even the report from the private physician only indicates that the Veteran’s hypertension is attributable to his sleep apnea, not that his sleep apnea is attributable to his hypertension. In light of the above, the Board finds that the Veteran’s sleep apnea is not secondary to his service-connected hypertension. The Board notes that a lay person is competent to give evidence about observable symptoms such as snoring and fatigue. Layno v. Brown, 6 Vet. App. 465 (1994). The Board also notes that a lay person is competent to address the etiology of a disability in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, however, the record dates the onset of symptoms to 20 years after separation from active service, and the question of causation extends beyond an immediately observable cause-and-effect relationship. As such, the Veteran is not competent to address the etiology of his sleep apnea disability, and, as discussed above, the medical evidence shows that this disability is not related to the service-connected hypertension. Lastly, the Board acknowledges that an October 2017 private physician opined that the Veteran’s sleep apnea is related to chronic obstructive pulmonary disease and bronchial asthma as well as posttraumatic stress disorder. However, as service connection is not in effect for these disorders, service connection on a secondary basis is simply not warranted. Accordingly, the Board concludes that service connection for sleep apnea, to include as secondary to a service-connected disability, is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. W. Kim, 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.