Citation Nr: 21005173 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 17-10 830A DATE: January 29, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is denied. FINDING OF FACT Obstructive sleep apnea was not shown in service and the preponderance of the evidence fails to establish that it is etiologically related to service or a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for obstructive sleep apnea have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from June 1967 to May 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). In November 2017, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. The transcript is of record. The case was remanded for additional development in December 2019. 1. Entitlement to service connection for obstructive sleep apnea. 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. Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303(a). In the case of a veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war VA shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Compensation may be established for any incremental increase in disability—any additional impairment of earning capacity—in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase—regardless of its permanence. Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). 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). The term “disability” for VA compensation purposes refers to the functional impairment of earning capacity rather than the underlying cause of the impairment and it is noted that pain alone may be a functional impairment. See Saunders v. Wilkie, 887 F.3d 1356, 1364-68 (Fed. Cir. 2018). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). VA may favor one medical opinion over another, provided an adequate basis is provided. Owens v. Brown, 7 Vet. App. 429 (1995). In determining whether evidence submitted by a claimant is credible, VA may consider internal consistency, facial plausibility, and consistency with other evidence. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). A medical opinion based upon an inaccurate factual premise may be discounted entirely. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102. The Veteran contends that he has obstructive sleep apnea as a result of active service, to include as secondary to his service-connected posttraumatic stress disorder (PTSD) and type II diabetes mellitus. In his September 2011 claim he reported he was first diagnosed with sleep apnea over 10 years earlier, i.e., sometime around 2000. However, at his November 2017 hearing, he testified that during service in Vietnam a fellow service and a medic had witnessed his snoring and stopped breathing and had suggested an opinion at that time of that he had sleep apnea. The Veteran stated he had not accepted that he had sleep apnea and, in essence, subsequently lived with it for many years without treatment. He also recalled his spouse having told him in approximately 1974 or 1975 that he had snored and stopped breathing one night while sleeping. Service connection is established for PTSD, chronic kidney disease, type II diabetes mellitus, bilateral hearing loss, peripheral neuropathy of the left lower extremity, peripheral neuropathy of the right lower extremity, and tinnitus. He is a recipient of the Combat Infantryman’s Badge; and, his status as a combat veteran is established. Service treatment records are negative for complaint, treatment, or diagnosis of sleep apnea. The pertinent evidence of record includes a September 2007 private sleep study and private treatment records dated in 2007 noting diagnoses of sleep apnea. A July 2012 VA Sleep Apnea Disability Benefits Questionnaire (DBQ) completed by a private physician provided a diagnosis of obstructive sleep apnea (OSA). It was noted that a sleep study had been completed in September 2007. The examiner stated that the Veteran had findings, signs, or symptoms attributable to sleep apnea including posttraumatic stress, fatigue, and obesity. A Diabetes Mellitus DBQ signed in September 2013 and noted as updated in October 2013 marked boxes on the form indicating that OSA was at least as likely as not due to and permanently aggravated by the Veteran’s service-connected diabetes mellitus. No additional comments or information as to these matters were provided. VA examination in January 2017 based upon a review of the record noted the Veteran was a combat veteran and had reported problems during active service including bad/altered sleep cycles, snoring, and/or stopping breathing during sleep. The examiner noted that it would be merely speculative to stated that his sleep symptoms from 1967 to 1969 caused his current OSA and that it was less likely because obesity was a major risk factor and his weight had fluctuated from 167 pounds to 190 pounds in July 2003. It was further noted that although he may have had interrupted sleep cycle and snoring during service it did not support that he had OSA in service as it would be expected that untreated OSA would have resulted in daytime somnolence prior to the 2000s, which was not documented in this case. The examiner further found that it was less likely his OSA was aggravated by his type II diabetes mellitus and less likely aggravated or caused by his PTSD. It was noted that the medical literature was not supportive of the secondary causation or aggravation claims and stated it was possible that the September 2013 private DBQ examiner had misinterpreted the medical literature. A February 2017 VA medical opinion found it was less likely that the Veteran’s OSA was incurred in or caused by an in-service injury, event, or illness and less likely proximately due to or the result of a service-connected disability. The examiner stated the disorder was a stand-alone entity, neither due to nor aggravated by active service. It was noted that service treatment records were silent to diagnosis or treatment of OSA and that it was well known that the risk factors for OSA included obesity, an oropharynx “crowded” by a short or retracted mandible, a prominent tongue base or tonsils, a rounded head shape and a short neck, a neck circumference greater than 43 centimeters, thick lateral pharyngeal walls, lateral parapharyngeal fat pads, aging, and alcohol or sedative use. The examiner also noted that a review of current medical literature was silent for any objective evidence to support a contention that the Veteran’s OSA was aggravated to any degree by his active military service, his service-connected PTSD, or his service-connected type II diabetes mellitus. It was noted that PTSD and type II diabetes mellitus were not risk factors for developing OSA and that recent medical literature was silent for any mechanism by which PTSD or type II diabetes mellitus may cause or aggravate OSA. The examiner also noted that it was not unusual for type II diabetes mellitus and OSA to coexist in obese individuals, as in the Veteran’s case. The examiner acknowledged review of the September 2013 Diabetes Mellitus DBQ that remarked that OSA was at least as likely as not due to and permanently aggravated by the Veteran’s service-connected diabetes mellitus, but found no opinion could be provided as to the validity of the opinion because no medical literature was cited for reference. In July 2018, the Veteran provided a copy of a medical opinion summary, apparently associated with another Veteran, noting medical evidence indicated a substantially higher rate of increased sleep apnea in combat veterans with PTSD than in the general population. Reference to a 2015 article, “Obstructive Sleep Apnea and Posttraumatic Stress Disorder among OEF/OIF/OND Veterans,” was provided. A copy of the article is now of record. A January 2020 VA medical opinion found it was less likely that the Veteran’s OSA was incurred in or caused by the claimed in-service injury, event, or illness. The examiner acknowledged the medical article referenced and noted that there was an increased incidence of individuals with sleep apnea and PTSD, but that this was a correlative relationship not a causative one. It was noted that there was no evidence at that time that there was a direct or indirect causative relationship between the two conditions. The examiner found that the Veteran’s current obstructed sleep apnea condition was not related to/caused by/ or aggravated by his military service. A June 2020 VA medical opinion found that it was less likely that the Veteran’s OSA was proximately due to his PTSD. The examiner noted agreement with the January 2020 opinion as to the article referenced that there was an increased incidence of individuals with sleep apnea and PTSD and that an association did not prove cause and effect. It was further noted that there was no evidence in mainstream medical literature indicating a direct causative relationship between PTSD and OSA. The current medical literature was noted to indicate that OSA occurs when the airway becomes partially or fully blocked and that well-defined risk factors for OSA included older age, male gender, obesity, craniofacial abnormalities, and upper airway soft tissue abnormalities. Potential risk factors also included smoking, nasal congestion, and family history. The examiner stated that although PTSD had been found in patients with OSA, particularly those with severe PTSD, additional research was needed to determine why and if other comorbid conditions/risk factors were present that may have played a role. The examiner stated that she could not comment as to whether the Veteran had upper airway soft tissue abnormalities, but he did have other risk factors for OSA including older age, male gender, and a body mass index (BMI) around 37, with the most significant being his BMI. As to the issue as to whether the Veteran’s OSA was at least as likely as not aggravated beyond its natural progression by his service-connected PTSD, the examiner stated the records were insufficient for a baseline determination of the condition and found that his OSA was less likely aggravated beyond its natural progression by his service-connected PTSD. The rationale provided was that an association did not prove cause and effect. It was further noted that the current mainstream medical literature did not support that PTSD aggravates OSA. Based upon the evidence of record, the Board finds that OSA was not shown in service and that the preponderance of the evidence fails to establish that it is etiologically related to service or to a service-connected disability. The Veteran is a combat veteran and his statements as to symptoms manifest during service in Vietnam are found to be credible and consistent with the circumstances of his service. The Board finds, however, that the January 2017 VA medical opinion is persuasive that any acute symptoms noted during service were not indicative of a chronic OSA disorder that continued after service. The examiner acknowledged the Veteran’s reported problems during active service of bad/altered sleep cycles, snoring, and/or stopping breathing during sleep, but found that it was less likely his current or chronic OSA had been manifest in service. The rationale provided that in the absence of any earlier evidence of untreated OSA or daytime somnolence it was more likely that his OSA developed as a result of his post-service obesity. The direct service connection opinion is consistent and was, in fact, reinforced by the February 2017 VA examiner’s opinion that the Veteran’s obesity was a major risk factor for his OSA. The Board further finds that the January 2017, February 2017, January 2020, and June 2020 VA medical opinions are persuasive that the Veteran’s OSA was neither caused nor aggravated as a result of service or a service-connected disability. Overall, these opinions acknowledge that it is not unusual for type II diabetes mellitus and OSA to coexist in obese individuals, as in this case, but that this was a correlative relationship not a causative one. In fact, the June 2020 VA specifically found that it was less likely that the Veteran’s OSA was proximately due to his PTSD. The examiner addressed the available medical literature and acknowledged that PTSD had been found in patients with OSA, particularly those with severe PTSD, but found, in essence, that that the available research was not determinative as to such findings when other comorbid conditions/risk factors were present. The examiner found that the Veteran’s other risk factors for OSA including older age, male gender, and a BMI around 37 were more significant in this case, with the most significant being his BMI. The January 2017, February 2017, January 2020, and June 2020 VA examiners are shown to have reviewed the evidence of record and to have adequately considered the credible lay statements and symptom manifestation history of record. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). The Board acknowledges the September 2013 private examiner’s DBQ finding as to a causal or aggravating relationship between the Veteran’s type II diabetes mellitus and his OSA. However, in the absence of any comments as to rationale or reference to supporting medical or scientific evidence, the opinion warrants a lesser degree of probative weight. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995). The Board finds that the copy of a medical opinion received by VA in July 2018 is of no probative weight. It is not shown to pertain to the Veteran and no additional information was provided as to how it may apply in this case. To the extent the document indicates support of the matters addressed in the referenced medical literature, the Board notes that a copy of the article is of record and was adequately considered by the January 2020 and July 2020 VA examiners. With regard to medical literature, VA has “an obligation to consider and discuss potentially favorable medical text evidence that was unaccompanied by a medical opinion.” McCray v. Wilkie, 31 Vet. App. 243, 255 (2019). The Board concludes that the information provided has been adequately addressed and explained by the available VA medical opinions. Consideration has also been given to the personal assertions of the Veteran that he has OSA as a result of service, including as a result of a service-connected disability. However, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The disabilities at issue are not conditions that are readily amenable to lay diagnosis or probative comment regarding etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In conclusion, the Board finds service connection for OSA is not warranted. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The preponderance of the evidence is against the claim. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Douglas 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.