Citation Nr: 21062088 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 15-22 665 DATE: October 6, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has OSA that had its onset in service or is otherwise related to his military service. CONCLUSION OF LAW The criteria for service connection for OSA have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1980 to July 1992. In October 2018, the Veteran testified before a Veterans Law Judge (VLJ). A transcript of the hearing is of record. In February 2021, the Veteran was informed that the VLJ who conducted the hearing is no longer with the Board. The letter stated that the VLJ who presided at a hearing must participate in the final determination of a claimant's claim(s). See 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. The letter informed the Veteran of his right to another hearing. In March 2021, the Veteran indicated that he did not wish to appear at another Board hearing. Therefore, the Board will proceed accordingly. In March 2019 and April 2021, the Board remanded the claim for further development. The Veteran submitted additional evidence after the July 2021 Supplemental Statement of the Case (SSOC). This evidence was not previously considered by the agency of original jurisdiction (AOJ). Statutory provisions allow for an automatic waiver of initial AOJ review of post-substantive appeal evidence if submitted by the veteran for appeals filed after February 2, 2013. See 38 U.S.C. § 7105(e); Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Here, the Veteran's substantive appeal was filed in March 2018. Therefore, the automatic waiver provision applies. The Board shall consider the newly submitted evidence in the first instance. Entitlement to service connection for obstructive sleep apnea (OSA) A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for disability shown after service, when all the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). Analysis The Veteran contends that his OSA is due to military service. The Veteran has been diagnosed with OSA. As such, element one under Shedden is met. The Veteran's service treatment records, (STRs) do not document treatments, complaints, or diagnosis of OSA or sleep issues. On his August 1980 Report of Medical History: RA, the Veteran's psychiatric examination was normal. The Board notes that there appears to be no separation exam of record. In December 2010, the Veteran was afforded a VA Persian Gulf War examination to determine the nature and etiology of his disabilities. The Veteran reported poor sleep hygiene, nightmares, insomnia, and difficulty falling and staying asleep. The examiner noted a positive history of sleep apnea with possible symptoms to include daytime hypersomnolence, snoring, and sleep disruption. However, the Veteran had not been evaluated for OSA. The examiner diagnosed the Veteran with possible OSA with tension headaches. In December 2011, the Veteran was seen at the Guntersville, Alabama: Mental Health Note, to address his functional adjustment, medication/treatment issues, and specific health care concerns. The Veteran reported returning to work the week prior to his appointment. He stated that he experienced stress, and since returning to work, he was not sleeping well. From 2013 and on multiple occasions, the Veteran's family member and/or his wife accompanied him to his appointments. In September 2016, the Veteran was seen for a sleep medicine consult. He reported being told by his wife that he stopped breathing at night, and he reported being sleepy during the day. In November 2016, a sleep study revealed that the Veteran had sleep apnea. During his October 2018 Board hearing, the Veteran stated that his wife told him prior to deployment, he did not snore. He stated that while deployed, he lived around oil well fires for six months, and in the mornings, there was black ash on everything. He breathed the ash. After he returned from deployment, he had issues. His wife also testified that prior to deployment, the Veteran slept "okay"; however, since returning from deployment, he snored "pretty badly," and, a lot of times, he stopped breathing. She further stated that she had to kick or nudge him, and then he would gasp for air. In September 2019, the Veteran was afforded a VA examination to determine the nature and etiology of his OSA. The Veteran reported having a history of Ehlers-Danlos syndrome (EDS), snoring, and apnea. He stated that the issues began after he returned from Iraq in 1991. However, he did not have a sleep study until 2016. The sleep study confirmed mild sleep apnea. The examiner confirmed the Veteran's OSA diagnosis. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that the Veteran claimed symptoms of sleep apnea since 1991; however, there was no documentation in his records of this being an ongoing problem. He was diagnosed with sleep apnea in 2016, more than 25 years after the onset of his symptoms. The examiner stated that because of this long-time lapse and a lack of nexus, he felt that it was less likely than not that the Veteran's current sleep apnea syndrome began in service. In April 2021, the Board stated that the 2019 VA examiner noted that the Veteran claimed to have symptoms of sleep apnea since 1991. But, due to a lack of documentation in his records of an ongoing problem and because he was diagnosed more than 25 years after the onset of symptoms, the examiner felt that the Veteran's sleep apnea syndrome did not begin during service. The Board noted that the examiner relied on the lack of documentation and dismissed without explanation the Veteran and his wife's lay statements regarding the Veteran's symptoms during service after returning from deployment. The Board remanded the claim for a new examination. In June 2021, the Veteran was afforded another VA examination to determine the nature and etiology of his OSA. The Veteran stated that he never complaint of any sleeping issue and was never evaluated, diagnosed, or treated while in the military. However, he stated that in 1990 to 1991 while in Iraq, he was exposed to oil fires. He stated that this may have resulted in his sleep problem. He also stated that after he returned from Iraq, his wife told him that he snored a lot, and he often stopped breathing when he slept. He stated that he later experienced daytime fatigue and sleepiness which worsened. The examiner confirmed the Veteran's OSA diagnosis. The examiner opined that the Veteran's sleep apnea shown in 2016 more than two decades after separation from the military, is less likely as not caused by, a result of, or aggravated by military service and the reported snoring/apnea by the Veteran's wife. It is also not shown to be the result of exposure to oil wells fires/burn pits. The examiner stated that while snoring and apnea are symptoms generally associated with OSA, the snoring/apnea can be present without a diagnosis of sleep apnea. If the snoring is present, and the Veteran has five or less apneic episodes per hour and it is witnessed, the Veteran does not have sleep apnea. Therefore, just the reported snoring/apnea by the Veteran's wife is not sufficient for a diagnosis of sleep apnea. The examiner stated, based on the symptoms reported by the Veteran's wife, it is most likely that the symptoms were present without sleep apnea which was not diagnosed. The diagnosis of mild sleep apnea shown after a sleep study more than two decades after separation from the military is most likely multifactorial to include the following risk factors; aging, being of the male sex, history of ETOH use, weight gain (in 2010, he weighed 230s; 240s in 2012; and 250 plus in 2013 plus), sleeping position, and other medical conditions. The examiner also stated that for several years after separation from the military, there had been no findings in the medical record indicating any specific report of symptoms associated with sleep apnea. This includes the reported history of snoring and witness apnea per a supportive note from the Veteran's wife. However, many years after separation from the military and as noted during evaluation/counseling for posttraumatic stress disorder (PTSD), there were noted reports of sleep disturbance. As shown during mental health follow ups in 2014 and 2015, the Veteran reported his stress situation was such that he could not relax, and, therefore, he had difficulty falling asleep and staying asleep. Further, the Veteran reported an average of 2-3 hours of nightly sleep. During many of the Veteran's follow up evaluations/counseling as shown in 2014 and part of 2015, the Veteran was accompanied by his wife. While the Veteran often reported the sleep disturbance due to stress, there was no noted history of snoring/apnea even while the wife was present. By 2016 and over two decades after separation from the military, it is shown that a sleep study was performed, and the result indicated the presence of OSA, but a specific etiology was not apparent. In July 2021, the Veteran submitted an article entitled, Sleep Disorders in US Military Personnel: A High Rate of Comorbid Insomnia and Obstructive Sleep Apnea. The researchers noted that sleep disturbances are among the most common symptoms of military personnel who return from deployment. The objective of the study was to determine the presence of sleep disorders in U.S. military personnel referred for evaluation of sleep disturbances after deployment and examine associations between sleep disorders and service-related diagnoses of depression, mild traumatic brain injury, pain, and PTSD. One hundred and ten military personnel were involved in the study. The researchers noted that from 2001 to 2009, the diagnostic rates for insomnia and OSA increased by 19 and 5.8 times, respectively. The examiners noted that sleep disturbances in military personnel are attributed to a multifactorial process. Deployment across multiple time zones results in circadian misalignment. Chronic sleep deprivation, a component of the military culture, is exacerbated by the physical and emotional stress of deployment; this results in sleep fragmentation and insomnia. Upon returning from combat operations, sleep disturbances frequently persist. The researchers stated that 58.1 percent of military personnel undergoing a sleep study have one or more medical comorbidities, and that those diagnosed with insomnia are two times more likely to have PTSD. The researchers concluded that comorbid insomnia and OSA is a frequent diagnosis in military personnel referred for evaluation of sleep disturbances after deployment. This diagnosis, which is difficult to treat, may explain the refractory nature of many service-related diagnoses. Based on the evidence of record, the Board finds that service connection for OSA is not warranted. The Veteran's STRs do not document complaints, treatments, or diagnosis for OSA. Additionally, the 2021 VA examiner opined that the claimed condition is less likely as not caused by, a result of, or aggravated by military service and the reported snoring/apnea by the Veteran's wife. The examiner also stated the Veteran's OSA is not shown to be the result of exposure to oil wells fires/burn pits. The examiner stated that while snoring and apnea are symptoms generally associated with OSA, the snoring/apnea can be present without a diagnosis of sleep apnea. The examiner stated that if the snoring is present, and the Veteran has five or less apneic episodes per hour and it is witnessed, the Veteran does not have sleep apnea. Therefore, just the reported snoring/apnea by the Veteran's wife is not sufficient for a diagnosis of sleep apnea. The examiner stated, in this Veteran's case, and based on the symptoms reported by his wife, it is most likely that the symptoms were present without sleep apnea which was not diagnosed. The examiner also stated that for several years after separation from the military, there had been no findings in the medical record indicating any specific report of symptoms associated with sleep apnea. This includes the reported history of snoring and witness apnea per a supportive note from the Veteran's wife. However, many years after separation from the military and as noted during evaluation/counseling for PTSD, there were noted reports of sleep disturbance. As shown during mental health follow ups in 2014 and 2015, the Veteran reported his stress situation was such that he could not relax, and, therefore, he had difficulty falling asleep and staying asleep. During many of the Veteran's follow up evaluations/counseling as shown in 2014 and part of 2015, the Veteran was accompanied by his wife. While the Veteran often reported the sleep disturbance due to stress, there was no noted history of snoring/apnea even while the wife was present. In 2016, and over two decades after separation from the military, a sleep study was performed. The result indicated the presence of OSA, but, a specific etiology was not apparent. The examiner stated that the diagnosis of mild sleep apnea shown after a sleep study more than two decades after separation from the military is most likely multifactorial, to include the following risk factors; aging, being of the male sex, history of ETOH use, weight gain, sleeping position, and other medical conditions. The Board also notes that the first medical evidence of possible OSA was in 2010, i.e., 18 years after discharge from service. The fact that there were no records of any complaints or treatments involving the Veteran's OSA for many years weighs against the claim. See Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (it was proper to consider the veteran's entire medical history, including a lengthy period of absence of complaints). The Board has considered the Veteran, his representative's, and other lay statements regarding the etiology of the Veteran's OSA. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, a nexus between the Veteran's OSA and service, is outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The Board has also considered the article submitted by the Veteran but finds that it is of limited probative value. The Board finds that the article provided only general information that is not specific to the particular facts of this case. The Board finds that the VA medical opinions are more probative, because they were a product of consideration of the Veteran's relevant history as well as medical literature and included a rationale specific to the Veteran. Therefore, in the absence of a nexus, the claim for service connection for OSA is denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Moore 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.