Citation Nr: 21005184 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 09-21 366 DATE: January 29, 2021 ORDER Service connection for sleep apnea is denied. FINDING OF FACT The Veteran’s obstructive sleep apnea is not secondary to service-connected posttraumatic stress disorder (PTSD) and is not otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea due to service or a service-connected disease disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the U.S. Navy from September 1965 to August 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2008 rating decision. The Veteran testified before the undersigned Veterans Law Judge at a Board hearing in April 2015. The matter was then remanded for additional development in May 2016, February 2017, October 2017 and April 2020. Service connection for sleep apnea The Veteran contends that he has sleep apnea etiologically related to his period of active service, including asbestos exposure and herbicide agent exposure in service. Alternatively, he contends that sleep apnea is secondary to his service-connected PTSD. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Private treatment records from February 2007 and March 2007 establish a current diagnosis of obstructive sleep apnea. Unfortunately, the Board concludes that, while the Veteran has a current diagnosis, and evidence shows that asbestos exposure in service occurred, the preponderance of the evidence weighs against finding that the Veteran’s sleep apnea began during service or is otherwise related to an in-service injury, event, or disease, including asbestos exposure. Private treatment records show the Veteran was not diagnosed with sleep apnea until February 2007, decades after his separation from service. While the Veteran is competent to report having experienced symptoms of sleep apnea during service, the Board does not find such statements to be credible. Specifically, during his Board hearing, he testified that he did not know when sleep apnea “came into effect,” and initially denied having any symptoms prior to about 10 years earlier. He later testified, with prompting from the undersigned, that he had difficulty sleeping and waking up with shortness of breath during service. However, his service treatment records, which document various complaints such as nosebleeds and dizziness, are negative for any complaints, treatment or diagnoses related to sleep apnea. Therefore, the overall weight of the evidence is against a finding that sleep apnea had its onset during service. To the extent that the Veteran has asserted that sleep apnea is etiologically related to asbestos exposure in service, the Board first notes that asbestos exposure has been established. However, VA examiners from September 2017 and May 2017 collectively stated that sleep apnea was not associated with asbestos exposure, noting that the literature did not support such a connection. There is no competent medical evidence to refute this conclusion or otherwise link sleep apnea to asbestos. Regarding herbicide agent exposure, the Board already concluded in its May 2016 remand that such exposure has not been established. Therefore, service connection for sleep apnea on a direct basis is not warranted. As discussed above, the Veteran has also asserted that his sleep apnea is secondary to his PTSD. Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. Regarding causation, the Veteran’s treating social worker stated, in September 2008, that the Veteran had sleep apnea, a common condition with PTSD patients. However, an October 2020 VA examiner stated that sleep apnea was not due to PTSD, noting that there was no credible evidence to suggest PTSD causes sleep apnea. He cited a study of 195 vets in 2015 which found that 60 percent of participants screened at higher risk for sleep apnea. No formal sleep apnea investigations were done, and diagnoses of sleep apnea were not made. The examiner stated that no conclusion can be drawn for a causal association between PTSD and sleep apnea. He further noted that, at the time of his diagnosis, the Veteran was obese and documented to have narrow upper airways, and that these are well-recognized risk factors for sleep apnea. Because the VA examiner’s opinion is supported by an accompanying rationale, the Board finds it to be more probative than the September 2008 statement from the Veteran’s social worker, which only alluded to a connection between PTSD and sleep apnea without further comment. Regarding aggravation of sleep apnea, VA will not concede that a nonservice-connected condition was aggravated by a service-connected disability unless the baseline level of severity of the nonservice-connected condition is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected condition. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities 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). In this case, the Veteran was diagnosed with obstructive sleep apnea and prescribed a CPAP device to wear. This establishes a baseline level of 50 percent under 38 C.F.R. § 4.97, Diagnostic Code 6847. A higher 100 percent rating is assigned when sleep apnea results in chronic respiratory failure with carbon dioxide retention or cor pulmonale, or if sleep apnea requires a tracheostomy. In order to establish service connection for sleep apnea based on aggravation by PTSD, the evidence must show that his PTSD caused sleep apnea to manifest with chronic respiratory failure with carbon dioxide retention, cor pulmonale, or treatment with a tracheostomy. However, the October 2020 VA examiner found that these manifestations were not present, and there is no indication that they were present at any time during the appeal period. Notably, the Veteran reported during his October 2019 and October 2020 VA examinations that his sleep apnea had improved since its initial onset.   For these reasons, sleep apnea has not been shown to be aggravated by PTSD, and service connection on a secondary basis is not warranted. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shamil Patel, 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.