Citation Nr: 21062292 Decision Date: 10/07/21 Archive Date: 10/06/21 DOCKET NO. 10-22 625A DATE: October 7, 2021 ORDER Entitlement to service connection for obstructive sleep apnea and/or sleep disorder is denied. FINDING OF FACT The Veteran's sleep apnea and/or sleep disorder are not secondary to service-connected degenerative disc disease of the lumbar spine and/or hypertension and are not otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for sleep apnea and/or sleep disorder due to service or service-connected degenerative disease of the lumbar spine and/or hypertension are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1979 to February 1982. This matter is on appeal to the Board of Veterans' Appeals (Board) from a July 2009 rating decision. Procedurally, the Veteran timely appealed the July 2009 rating decision denying his claim for service connection for a sleep disorder. The claim was remanded by the Board in October 2012 for a hearing to be scheduled; a hearing was held by the undersigned Veterans Law Judge in February 2013. The claim was again remanded by the Board in October 2014, August 2015, November 2016, July 2017. In a May 2019 decision, the Board denied the Veteran's claim. He appealed to the Court of Appeals for Veterans Claims (CAVC). Pursuant to a Joint Motion for Remand wherein the parties agreed the Board did not provide an adequate statement of reasons and bases on whether there was substantial compliance with the July 2017 remand directives regarding whether a VA examiner addressed a specific National Institute of Health (NIH) study cited by the Veteran as well as whether medications could result in or aggravate sleep apnea, the CAVC vacated the May 2019 decision and remanded back to the Board. In a September 2020 decision, the Board remanded for further development. The September 2020 remand directed the RO to request from the Veteran's representative a copy of the NIH medical literature mentioned in the 2017 Informal Hearing Presentation. If a copy could not be provided, the RO was directed to request that the representative provide citations for the literature in question. Next, a VA addendum opinion was requested wherein the examiner must opine whether it was at least as likely as not that the Veteran's sleep apnea is aggravated by his service-connected lumbar spine and/or hypertension disability, to include any manifestations thereof (including pain). The examiner must also address whether medications taken for the lumbar spine and/or hypertension disabilities result in or aggravate the soft tissue blockage the Veteran experiences in conjunction with his sleep apnea disability, or, in the alternative, result in nighttime urinary urgency. It was emphasized that the examiner should specifically address the findings of the NIH Heart, Lung, and Blood Institute stating that sleep apnea is more common in people who have certain medical conditions or use certain medicines, as well as the evidence indicating that there is a relationship between sleep disturbance and chronic pain. Development letters were sent to the Veteran and his representative requesting a copy or citation of the NIH medical literature on September 24, 2020, October 26, 2020, and December 9, 2020. No response was received. A January 2020 VA Report of General Information reflected that VA reached out to the representative and was informed that any paperwork given by a Veteran would be uploaded to VBMS and would not be kept by the service representative. Despite the failed attempts to obtain the medical literature, a VA addendum opinion addressing and considering said literature was obtained in July 2021. The examiner stated that the NIH Heart, Lung, and Blood Institute was familiar to medical providers, and, thus, was considered when rendering her opinion. The Board finds that the RO made sufficient attempts to obtain the medical literature from the Veteran and/or his representative, and the September 2020 remand directives have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order); Dyment v. West, 13 Vet. App. 141, 147 (1999) (clarifying that substantial compliance with Board remand is required). As indicated above, the Veteran contends his diagnosed sleep apnea and sleep disorder are caused or aggravated by his service-connected degenerative disc disease of the lumbar spine (lumbar spinee disability) and/or hypertension, to include due to his medications and frequent nighttime urination. In order to prove service connection, there must be competent and credible evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the in service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also 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). 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). In the Veteran's hearing, he acknowledged that he had no diagnosis of a sleep disorder but stated he had significant problems with sleeping due to the chronic pain in his back. He also stated that his hypertension medication kept him up at night, requiring him to urinate frequently. A witness accompanying the Veteran endorsed witnessing the Veteran snoring. The medical records show the Veteran has complained of sleep difficulty intermittently as early as the 1990s. In January 1992, he complained that he rarely gets a full night of sleep and does not tolerate the supine recumbent posture. In July 1999, the Veteran was started on Trazodone due to problematic sleep and not feeling rested. At that time, he also stated his low back and left hip interfere with his sleep. Psychiatric treatment notes from that time also reflect poor sleep. In October 2000, he endorsed having a sleeping disorder that caused him to fall asleep at the wheel. In a May 2008 VA treatment record, the Veteran relayed troubling dreams approximately once monthly and disrupted sleep nightly. He did not feel disoriented or relate screaming or signs of autonomic arousal. Several psychosocial stressors were noted. The Veteran was diagnosed with parasomnia, NOS [not otherwise specified]. In October 2008, the Veteran attended a chronic pain management patient education program in which the topic of the interaction of sleep problems and chronic pain were addressed. In June 2009, the Veteran endorsed sleeping nightly and opined that his sleep difficulties are because he did not like being alone. In July 2015 correspondence, the Veteran reiterated that his back pain affects his ability to sleep. In a January 2016 VA referral for a sleep study due to suspected sleep apnea, it was indicated that the Veteran snored and had comorbid conditions such as coronary artery disease, stroke, diabetes, and hypertension. He did not have excessive daytime sleepiness or witnessed apneas. It was further noted that the Veteran was overweight and likely had obstructive sleep apnea contributing to his hypertension. In a September 2016 sleep clinic evaluation, diagnoses of obstructive sleep apnea with minimal PAP adherence and chronic insomnia disorder were listed. It was noted that the provider discussed the pathophysiology that insomnia and sleepiness were sequelae of untreated sleep apnea and the benefits of PAP, side sleep, and weight loss. As stated above, the Veteran, through his representative, stated in his June 2017 Informal Hearing Presentation that the National Institutes of Health (NIH), Heart, Lung, and Blood Institute, noted that central sleep apnea can affect anyone. However, it is more common in people who have certain medical conditions or use certain medicines. There have been several VA opinions obtained throughout the pendency of this appeal. In a February 2015 VA examination, the report stated that the Veteran denied a diagnosis of sleep apnea and denied any urinary problems at the time. Medical records from 2014 showed that sleep was reported as "good" and "OK," and there was no mention of sleep problems or urinary problems from his provider. No diagnosis of sleep apnea was indicated. Because no tests were conducted to ascertain whether a sleep disability was present, the claim was remanded for additional examination in August 2015. In a December 2015 VA examination for mental disorders, the report reflects that the Veteran was sleeping five hours a night with a one-hour nap during the day, indicating that most of the time he felt rested after sleeping. The Veteran did not report symptoms to substantiate a sleep disorder. Over the years, the Veteran had periods of describing sleep problems which have been attributed to a wide range of factors (e.g. school, work, financial worries, nightmares). Records indicate that he reported improved sleep with reduced caffeine. In the past couple of years, the Veteran noted sleep as either being "good" or "so-so." There was no evidence of a sleep disorder. The Veteran was diagnosed with obstructive sleep apnea in February 2016. A March 2016 VA examiner opined as follows: "Diagnosed with osa in Feb 2016, out of service in 1982, so not service connected. Also, osa is not related to or aggravated by his lumbar spine disability and associated pain, rationale is that medically this is not a cause of osa." Because the March 2016 examiner appeared to base part of his opinion on the absence of treatment, and he did not consider the medications taken for the Veteran's service-connected lumbar spine disability and hypertension and what effect they may have on his sleep, including frequent nighttime urination, the Board in November 2016 determined an addendum opinion was required for clarification. In February 2017, the same examiner provided the following addendum opinion: "records reviewed, osa not related to his service connected lumbar spine problems neither caused by or aggravated by his lumbar spine condition or related to his medications for lumbar spine and hypertension and not [related] to his need to arise at night to urinate. Rationale is that osa is caused by soft tissue blockage in ent [ear, nose, throat] area and not related to above problems." In a July 2017 decision, the Board found the examination inadequate for several reasons. First, the rationale did not adequately address whether the lumbar spine and hypertension disabilities aggravated his OSA, only whether there was a direct causal connection. Second, the opinion did not address if the medications taken for the lumbar spine and hypertension likely result in or aggravate the soft tissue blockage the Veteran experiences in conjunction with his sleep apnea. In that regard, the Board noted the NIH study cited by the Veteran. Thus, because there was evidence indicating there may be a relationship between medications and sleep apnea, this must be addressed with more than a blanket statement that there is no relationship. Third, the examiner did not adequately address what factors play a role in the Veteran's nighttime urinary urgency, including, theoretically, whether the medications taken for the lumbar spine and hypertension result in such urgency. Fourth, the Board found an opinion was needed discussing whether the parasomnia is caused or aggravated by the lumbar spine or hypertension disabilities. In July 2017, the same examiner provided an additional addendum opinion stating as follows: "there is a less than 50% probability that his osa is aggravated beyond normal by his lumbar spine or hypertension or medication for them, rationale is that these do not have any affect on the soft tissue structures of upper respiratory system and not related to osa." An addendum opinion addressing the parasomnia was obtained from a new examiner in January 2018. The examiner opined that it was less likely than not that the parasomnia was caused or aggravated by the lumbar spine and/or hypertension. The rationale was as follows: "By definition condition caused by movements, behaviors, emotions, nightmares, perceptions and dreams while falling asleep, sleeping between sleep stages or during arousal from sleep. Per mental health note his was from nightmares." In May 2018, the same examiner who provided the March 2016 and 2017 opinions opined that there is a less than 50 percent probability that the Veteran's sleep apnea or parasomnia have been aggravated by his lumbar spine or hypertension or the medications for each. The rationale was "that review of medical literature fails to show a connection." A December 2018 Sleep Apnea Disability Benefits Questionnaire contains a statement from the Veteran that he noticed ongoing sleeping problems since 1980. In June 2021, a new examiner provided in the evidence comments of the report the following: "Obese veteran had sleep study in 2007 and was given cpap then. Redone test 2016. Denied symptoms and says "I am fine", Non compliant with cpap usage." The examiner opined "[t]he medications taken for the lumbar spine and/or hypertension disabilities does not result in or aggravate the soft tissue blockage the Veteran experiences in conjunction with his sleep apnea disability. Nor, in the alternative, result in nighttime urinary urgency." An addendum opinion from the same examiner obtained the following month states as follows: "Reviewed BVA remand dated September 10, 2020. NIH Heart, Lung, and Blood Institute familiar to medical providers. Sleep disturbance and chronic pain can be co-existing comorbidities in the same individual. However, there is no anatomical/pathophysiological/neuronal/hormonal or pharmacological correlation to causation." As stated above, the medical records reflect a diagnosis of parasomnia in 2008, and a diagnosis of obstructive sleep apnea in 2016. Thus, the first element required for service connection is met. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the requirement of the existence of a current disability is satisfied when a veteran has a disability at the time he or she files the claim or during the pendency of that claim). Regarding proximal causation and aggravation, the Board finds that the preponderance of the evidence is against the Veteran's claim. While the Board acknowledges that inadequacies are present in each opinion of record, collectively, the opinions provide the Board with adequate information from a medical standpoint to decide whether a causal or aggravation relationship exists. The 2021 VA opinions, while short on rationale, unequivocally provide that there are no anatomical, pathophysiological, neuronal, hormonal, or pharmacological correlations amounting to causation or aggravation, even considering the medical literature cited by the Veteran. The examiner explains that co-existing comorbidities such as chronic pain and sleep disturbance is not equal to causation. The Board finds this to be a logical medical explanation for the existence of sleep disturbance due to pain and possible side effects from medication, without a causal connection to the development of his diagnosed sleep disorders. This opinion, combined with the other VA opinions of record from two different VA examiners unanimously finding no causation or aggravation of any sleep disorder from his lumbar spine disability and hypertension, whether as a direct cause or via medication or frequent nighttime urination, is highly probative. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). The Board acknowledges the Veteran's statement in December 2018 correspondence that he has experienced ongoing sleep problems since 1980. Although the Veteran has consistently contended that his sleep disabilities are secondary to service-connected disabilities rather than directly incurred in service, his service treatment records show a September 1981 physical examination in which he indicated frequent trouble sleeping. The records also show numerous complaints of chronic low back pain. Thus, as there is no other indication of a diagnosed sleep disorder, the Board finds that the record is consistent with the June 2021 examiner's medical conclusion that the Veteran's sleep difficulty co-exists with other disabilities such as chronic pain but does not constitute a causal correlation. There is no indication that the Veteran's 1981 endorsement of sleep difficulty represents the development of sleep apnea or another sleep disorder. This is bolstered by the Veteran's several verbal denials of sleep difficulty throughout the post-service medical records. In conclusion, the evidence weighs against the Veteran's contentions that his diagnosed sleep apnea and parasomnia are caused or aggravated by his service-connected lumbar spine disability or hypertension, either directly or due to his medications and/or frequent nighttime urination. There is also no indication in the record that the Veteran's diagnosed sleep disabilities are otherwise related to service, and his claim must be denied. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Carroll, 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.