Citation Nr: 21062918 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 17-46 431 DATE: October 12, 2021 ORDER Entitlement to service connection for sleep apnea is granted. FINDING OF FACT The most probative evidence shows that the Veteran's sleep apnea began during service. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1986 until August 2006. She is a veteran of the Gulf War Era and Peacetime. This matter comes before the Board of Veteran's Appeals (Board) on appeal of a November 2015 rating decision of a Department of Veteran's Affairs (VA) Regional Office of the Veteran's Benefits Administration, which is the Agency of Original Jurisdiction (AOJ). This matter was previously before the Board in June 2019 at which time it was remanded for further development. This matter was again before the Board in March 2021 at which time it was remanded for further development. 1. Entitlement to service connection for sleep apnea Service Connection Service Connection is granted for disabilities resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order for a disorder to be service connected, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In making its decision, the Board must consider all the evidence of record, including medical evidence and lay evidence, and make appropriate determinations of competence, credibility, and weight. Washington v. Nicholson, 19 Vet. App. 362 (2005). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In order to deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis The Veteran contends that her obstructive sleep apnea is etiologically related to her active military service, to include as secondary to service-connected generalized anxiety disorder. The Veteran was diagnosed with sleep apnea during a sleep study in September 2013, meeting the first required element of service connection. The Veteran's service treatment records contain no complaints of, treatment for, or a diagnosis of sleep apnea. The lack of records is not dispositive but constitutes evidence to be considered and weighed against other medical and lay evidence of record. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran's service treatment records do note moderate sleep difficulty in February 2005; trouble falling asleep, staying asleep, or sleeping too much several days per week in May 2005; and trouble concentrating, several days per week in May 2005. The Veteran was afforded a VA examination for sleep apnea in October 2015. The Veteran reported that she was diagnosed with sleep apnea after service pursuant to a sleep study and requires the use of a CPAP machine. She was treated with zolpidem during active service. She reported taking dextroamphetamine to stay focused and still has some problem with sleepiness during the day. The Veteran reported that she gets 4-5 hours of sleep without arousal and is able to go back to sleep if aroused. She indicated that she experiences leg cramps that arouse her or keep her from sleeping at times. The examiner found that although there is evidence in the medical records that the Veteran uses a CPAP machine, a diagnostic sleep study meeting the criteria for diagnosis was not found. Therefore, the examiner found that there was no sufficient clinical evidence to warrant a diagnosis of sleep apnea. In August 2017, the Veteran submitted a statement that she was diagnosed with sleep apnea through a sleep study conducted on August 21, 2013. She stated that she has been taking zolpidem (Ambien) since 2001 during active service to obtain sleep. She stated that she also had severe daytime fatigue and required prescribed dextroamphetamine to be able to safely function independently during the day. She reported complaints of sleeplessness, anxiety, inability to stay asleep, nocturia, chronic fatigue, headaches, GERD, inflammation, weight gain, and depression. She observed that there are many studies that indicate that sleep apnea in women is often misdiagnosed and undertreated. She cited The Rowe Neurology Institute finding that "many patients that complain of insomnia actually have sleep apnea" and have been on sleep aid medications for years. The Veteran stated that a 2017 peer-reviewed article entitled "Women with symptoms of sleep-disordered breathing are less likely to be diagnosed and treated for sleep apnea than men" found that females with daytime sleepiness may be underdiagnosed and undertreated for sleep apnea compared to males. She cited another study published in Acta Neurological Scandinavia found that more than 30% of patients who did not endorse OSA symptoms but did endorse insomnia or restless leg syndrome, were found to have OSA. The Veteran also cited an article published in Sleep, "Differences between men and women in the clinical presentation of patients diagnosed with obstructive sleep apnea syndrome" which found that women with OSA are more likely to be treated for depression, to have insomnia and to have hypothyroidism than are men. The Veteran further stated that she has been able to reduce the strength of her sleep aid, zoplidem, since using a CPAP at night. She stated that she was not afforded a sleep study during active service. She believes that her symptoms were misdiagnosed during service as she was never tested for sleep apnea during service, while she presented with many of the symptoms since 2001. The Veteran also submitted documentation of the August 2013 sleep study that diagnosed her with sleep apnea, noting that it was in her VA medical records. In its June 2019 decision, the Board found that the October 2015 VA medical opinion was inadequate and remanded for a new medical opinion. The Veteran submitted two buddy statements in December 2019. The first statement was written by an individual who served with the Veteran when she was stationed in Germany. He stated that he was the Veteran's supervisor at that time and that the Veteran's MOS was air traffic controller. The writer explained that he and the Veteran worked on shifts together during service. He further stated that air traffic controllers are a very close group of soldiers. They were in a small group in a tactical environment in very close quarters in field tents. He stated that everyone could hear and observe the Veteran's sleep apnea. He observed numerous occasions of symptoms of sleep apnea. He stated that he is a light sleeper and it used to scare him when he watched her trying to sleep. He stated that he clearly remembers her "weird type of snoring where it sounds like she was fighting for air, her waking up gasping for breath and her stop breathing in her sleep." He also remembered that the Veteran always seemed to have allergy issues like runny eyes and nose. He also remembered that the Veteran would have daytime tiredness during duty hours. She would fall asleep during the day or in a vehicle when she traveled short distances. He sent her home a couple of times to rest or at least to the break room to rest. She always looked tired. She would say she "did not sleep well" and complain of headaches and not being able to focus. The Veteran's husband also submitted a statement. He stated that throughout their 20-year marriage he witnessed her symptoms of insomnia migraines, severe depression, crying spells, anxiety, nightmares, panic attacks, chronic pain, and memory problems. He stated that her allergy symptoms and sinus problems worsened during service. She was "not able to sleep well and was waking up several times each night, many times gasping for air." She was referred to an ENT specialist that diagnosed her with a severely deviated septum. Surgery was done in an attempt to correct it. He stated that due to "chronic knee pain from an air assault injury and being tired from poor sleep she began to fight fatigue during the day and weight gain." In accordance with the Board's remand, a VA medical opinion was submitted in July 2020. 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 rationale was that the Veteran was diagnosed with sleep apnea by sleep study dated August 21, 2013. The examiner stated that there is no evidence of sleep apnea while in service. Sleep apnea is not noted until 2013. Therefore, he opined that it is less likely than not that the Veteran's sleep apnea arose in service or had its nexus in service. Furthermore, the examiner found that anxiety disorders do not cause sleep apnea. Instead, the examiner stated that sleep apnea results from restricted upper airways airflow associated with apneic episodes. Snoring, daytime fatigue and frequent wakening are not specific to sleep apnea and also occur with other unrelated sleep disorders. There is no physiologic or anatomic mechanism by which anxiety can cause OSA. This also includes the medications used to treat anxiety. Any impact of those medications on sleep would be mediated by the central nervous system and would be temporary, with no permanent impact and would ameliorate discontinuation of the medication. The examiner also found that the Veteran's sinus symptoms do not cause sleep apnea. Sinuses are not involved with air exchange and a condition of the sinuses would not impact OSA. He stated that this is accepted medical knowledge and practice. Therefore, he opined that it is less likely than not that the Veteran's OSA had its nexus in service or is due to the Veteran's anxiety disorder or the Veteran's sinus conditions/symptoms. In October 2020, a private nexus statement was submitted. The psychologist indicated that he conducted a "sleep apnea nexus interview" with the Veteran and reviewed the record. He opined that it was more likely than not that the Veteran's sleep apnea has the nexus of her military related painful injuries. His rationale included citations to peer review articles and scientific studies showing a connection between severe pain and sleep apnea. He summarized that severe pain disrupts normal sleep EEG activity and disrupts many aspects of normal sleep including sleep respiration and sleep oxygen levels. The psychologist also noted that the Veteran experiences significant anxiety. He also cited peer review scientific studies and peer review articles showing a connection between anxiety and sleep apnea. He noted the Veteran is obese which he attributes to her anxiety and that obesity can be considered an "intermediate step" between a service-connected disability and a claimed disability. While obesity is a risk factor for sleep apnea, the Veteran was not obese upon entry to service. He stated that there are multiple theories as to the cause of sleep apnea and that even in the medical field there is not one "cause" as multiple factors are related to sleep apnea. In its March 2021 decision, the Board found the July 2020 VA medical opinion inadequate and remanded for an adequate medical nexus opinion. First, the Board found that the examiner failed to indicate the method used to obtain medical information used to complete the document. Next, the Board found that the examiner apparently did not consider the various pieces of medical literature submitted by the Veteran on August 26, 2017. A medical opinion that does not consider all relevant evidence of record is inadequate. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Finally, the examiner failed to address the aggravation prong of secondary service connection in the opinion. In July 2021, a third VA nexus medical opinion was obtained. The examiner found there is no evidence of sleep apnea while in service or proximate to service. The examiner noted that the Veteran was diagnosed with mild OSA on the sleep study dated 8/21/13, seven years post-service. As it was mild at the time of diagnosis, he stated that it is unlikely to have been present since service, as the AHI likely would have been higher. Any reports of "snoring, daytime fatigue and somnolence, fitful sleep, insomnia, easy awakening, movements during sleep, gasping, choking etc. represent generalized symptoms with various potential causes and do not substantiate the diagnosis of OSA." The examiner found that it is less likely than not that the Veteran's OSA had its nexus in service. He stated that sleep apnea more likely than not arose or around 2012/2013. As to secondary service connection, the March 2021 examiner opined that psychological comorbidities, including depression, PTSD and anxiety, do not cause or aggravate OSA. He stated this is established medical knowledge and practice. Though sleep disturbances such as insomnia are common with psychological conditions, they are mediated by the central nervous system and differ from the mechanism of OSA. OSA is due to upper airway obstruction associated with apneic episodes. There is physiologic or anatomic mechanism by which psychological conditions can cause or aggravate OSA. This includes the medications used to treat related psychological comorbidities. Sleep aids/sleeping pills, anti-anxiety medications, antidepressants, etc. may cause sedation but this does not cause or aggravate the mechanism of OSA. Additionally, the medication effects could be ameliorated by discontinuing the medications or adjusting the dosage. This does not constitute aggravation of the baseline OSA condition. The examiner also opined that there is no evidence of aggravation of the Veteran's OSA beyond its natural course due to any cause. OSA tends to progress over time, often requiring CPAP adjustments or changes in treatment modality. He noted that studies have suggested a possible association between OSA, PTSD, depression and anxiety but cause and effect, including aggravation, has not been established in the current, widely accepted, peer-reviewed medical literature. This review includes Up to Date, a respected, professional medical resource. Therefore, he opined that it is less likely than not that the Veteran's OSA is due to or incurred in the Veteran's anxiety or related psychological comorbidities. Furthermore, he opined that it is less likely than not that the Veteran's OSA has been aggravated beyond its natural course due to any cause, including the Veteran's related psychological comorbidities. He stated that this rationale also applies to medications used to treat the psychological comorbidities as to both cause and aggravation. The studies cited discuss the possible association between psychological comorbidities, and OSA. The authors drew no conclusion as to cause or aggravation. It was once again indicated that it has yet to be established that anxiety and psychological comorbidities cause or aggravate OSA nor has their status as a risk factor been established. The Board finds these medical opinions are inadequate as the examiner applied an incorrect legal standard. El-Amin v. Shinseki, 26 Vet. App. 136 (2013). In addition, the rationale is conclusory. The standard "at least as likely as not" does not mean by a preponderance of the evidence; it requires a determination whether the evidence is evenly balanced, that is, at least in equipoise and if so, the benefit of the doubt goes to the Veteran. The examiner notes and then conclusively dismisses evidence of in-service symptoms that may be related to sleep apnea without explanation or rationale. He cites various "potential" causes for the Veteran's symptoms without explaining what those causes are or offering a rationale to support a finding that these other causes indicate that it is less likely than not that the Veteran's later diagnosed sleep apnea was a cause of her in-service symptoms. The Board further notes that the examiner acknowledges reports of "snoring, daytime fatigue and somnolence, fitful sleep, insomnia, easy awakening, movements during sleep, gasping, choking etc.," but states these "represent generalized symptoms with various potential causes and do not substantiate the diagnosis of OSA." However, a diagnosis of OSA is not necessary during service if a nexus is found between the Veteran's currently diagnosed sleep apnea and symptoms experienced during service. 38 C.F.R. § 3.303(d). The Board has considered the propriety of another remand however the Board observes that another remand would only result in unnecessary delay without additional benefit to the Veteran, which is to be avoided. Soyini v. Derwinski, 1 Vet. App. 540 (1991). Further, the Board finds that a decision is possible on the merits. The Board finds that the Veteran is competent to relate her symptoms during service which the Board finds to be credible. Jandreau V. Nicholson, 492 F. 3d. 1372 (2007). In addition, the Veteran's former military supervisor and her spouse are competent to relate their observations of the Veteran's symptoms. Layno v. Brown, 6 Vet. App. 465, 469 (1994), which the Board also finds to be credible. As to the private nexus opinion, while the provider focused largely on the asserted secondary causes for the Veteran's sleep apnea, including pain related to her in-service injuries, in relating her sleep apnea to disorders that were incurred during service, he points out the likelihood that her sleep apnea symptoms also began during service. The Board also notes that the March 2021 VA examiner acknowledged the Veteran's evidence of symptoms during service; although stating these symptoms could be related to other causes, he did not adequately describe or explain how the Veteran's symptoms were the result of another cause or causes. This falls short of a finding that the symptoms were not caused by sleep apnea. To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Here, the Board finds that the private nexus opinion, the Veteran's lay statements, the medical literature cited by the Veteran, and the buddy statements, constitute evidence that is at least in equipoise as to whether the Veteran's sleep apnea had its onset during active service. Providing the benefit of the doubt to the Veteran, the Board finds that service connection is warranted. 38 U.S.C.§§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Debra B. McLoughlin, 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.