Citation Nr: 21061365 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 20-09 257 DATE: October 1, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is denied. FINDING OF FACT The preponderance of the evidence does not support a finding that the Veteran's sleep apnea arose during or as a result of his active service, including as secondary to his service-connected PTSD disability. CONCLUSION OF LAW The criteria for entitlement to service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1967 to December 1969 in the United States Army. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2020 and January 2021, the Board remand his claim for service connection for sleep apnea. The Board finds that the RO has substantially complied with its remand directives, and the Board may now proceed with adjudication. The Veteran asserts that his sleep apnea arose during or as a result of his active service, including as secondary to his service-connected PTSD. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that an injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Additionally, service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical evidence. VA must also consider all favorable lay evidence of record. See 38 U.S.C. § 5107(b); see also Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (a Veteran is competent to report on that of which he or she has observed and is within the realm of his or her personal knowledge). In this case, the Veteran's service treatment records (STRs) are negative for complaints, treatment, or diagnosis for OSA or sleep problems. VA treatment records reflect the Veteran experiencing sleep difficulty in July 2005 and reporting that his sleep problems began during his service in Vietnam. November 2013 VA treatment records reflect the Veteran being documented as overweight. In March 2014, he also reported severe sleep problems. VA treatment records document the Veteran as negative for sleep apnea in February 2015. Sleep apnea is first documented in 2016. A May 2016 VA treatment note reflects that the Veteran reported he awoke multiple times a night and desired a sleep study. A sleep consult was scheduled. A private sleep study confirmed that the Veteran had obstructive sleep apnea. It was noted that he was diagnosed, by sleep study in August 2016, with sleep apnea. A September 2016 VA treatment note reflects that the Veteran reported his symptoms of sleep apnea include feeling unrested in the morning, nodding off during the day, interrupted sleep, snoring, and apnea episodes. All relevant medical records in the possession of the Social Security Administration (SSA) were requested. However, according to a January 2017 memorandum, no medical records existed. The Veteran filed a claim for service connection for sleep apnea in May 2018. In a May 2018 statement in support of his claim, the Veteran asserted that he experienced chronic sleep problems. In July 2018, the Veteran submitted a research article that indicated there was an elevated risk of developing sleep apnea among those with patients with psychiatric disorders. In a July 2018 Notice of Disagreement (NOD) statement, the Veteran asserted that he had experienced sleep problems since active service or 1969, but he had not been tested until recently. He also mentioned VA being in possession of files that he asserted had been burned years earlier. In a July 2018 Appellate Brief, the Veteran's representative repeated the Veteran's arguments and argued that several studies supported an elevated risk of developing sleep apnea if a patient had been diagnosed with an acquired psychiatric disorder. A research article submitted in March 2020 also supports a potential developmental relationship between psychiatric disorders and sleep apnea. In a March 2020 Appellate Brief, the Veteran's representative asserted that three research articles supported their argument that the presence of one or more psychiatric disorders made it more likely for a patient, and Veteran in particular, to develop sleep apnea. A May 2020 VA medical opinion reflects that OSA was less likely than not due to service or aggravated by his service-connected mental disorder. However, it was determined to be inadequate because the negative conclusions reached by the examiner were not supported with an analysis adequate for the Board to consider and weigh against other evidence of record. See Stefl v. Nicholson, 21 Vet. App. 102, 124-25. Further, it provided no reasoned medical explanation connecting the conclusion to any identified supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Accordingly, the Board lends the May 2020 medical opinion only limited probative weight. In an August 2020 statement in support of his claim, the Veteran reiterated that his sleep problems began during his service in Vietnam in 1969, and he believed this is when his OSA began. During the Veteran's March 2021 VA examination for sleep apnea, the VA examiner noted he was diagnosed with OSA in 2016. The Veteran reported that his condition began between 1967 and 1969, and it had stayed the same since its onset. The VA examiner opined that the Veteran's OSA was less likely than not related to service, including as secondarily caused or aggravated by his PTSD. First, the examiner noted that the Veteran was diagnosed with sleep apnea many years after service. Sleep apnea was a condition with a specific established diagnostic criteria and would not be properly diagnosed from simple complaints of fatigue, tiredness, sleepiness, or other nonspecific complaints. Sleep apnea was caused by the blockage of the upper airway by the tongue and soft palate. Risk factors include a genetic predisposition, obesity, short diameter of the neck, smoking, alcohol consumption, and the use of sedatives and tranquilizers. The examiner found these other potential factors to be more likely causes of the Veteran's OSA than his time during service. Second, the examiner noted that the relationship between OSA and PTSD is well-known and complex, but there had been no proven causative relationship between the two conditions. Third, the examiner found no evidence that the Veteran's OSA had been aggravated by his PTSD. There was no evidence of such aggravation in the Veteran's medical records. Additionally, aggravation of sleep apnea would require the development of end organ damage specific to sleep apnea, such as, but not limited to, for pulmonale. The examiner found the Veteran had no such complications The Veteran has consistently asserted that his OSA began during or as a result of his active service. In considering the Veteran's contentions, the Board notes that he is competent to observe lay symptoms but does not have the training or credentials to provide a competent opinion as to etiology, diagnosis, or the onset date of a medical disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). His lay contentions are thus of markedly lower probative value than, and are outweighed by, the March 2021 VA examination opinion and medical evidence of record. The Board finds the preponderance of the evidence is against the Veteran's claim. The Veteran's STRs are negative for sleep conditions or problems. While he reports that he experienced sleep problems since active service, and his VA treatment records reflect some treatment for sleep problems, he was noted as being negative for OSA in 2015. He was first diagnosed with OSA in 2016. The Board also notes that the Veteran did not file a claim for service connection until May 2018, almost five decades after leaving active service. No medical opinion supports the Veteran's claim, and the March 2021 VA examiner found his OSA was less likely than not related to service or caused or aggravated by his PTSD. While the Veteran submitted many research articles in support of his claim, these articles do not definitively prove that PTSD causes or aggravates sleep apnea, and they do not serve as evidence that this occurred in the Veteran's particular case. Based on these facts, the Board finds that the preponderance of the evidence is against finding that the Veteran's OSA began during or as a result of active service, including as caused or aggravated by his PTSD. Accordingly, the claim for service connection for OSA is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in this appeal. 38 U.S.C. § 5107(b). A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Hicks, Associate 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.