Citation Nr: 21063283 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 17-44 418 DATE: October 13, 2021 ORDER Entitlement to service connection for sleep apnea, to include as secondary to a service-connected disability, is denied. FINDINGS OF FACT 1. The Veteran's sleep apnea onset in approximately 2006, some 36 years after his separation from service and more than 4 years prior to the onset of significant and/or noticeable symptoms of his since determined to be service-connected posttraumatic stress disorder (PTSD). 2. The most probative (meaning most competent and credible) evidence is against finding that his sleep apnea is directly related to his service or secondarily related, meaning caused or aggravated by a service-connected disability especially his PTSD. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for sleep apnea. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active military service from September 1967 to September 1970. He testified in support of this claim during a July 2021 "virtual" teleconference hearing before the undersigned Veterans Law Judge of the Board. A transcript of the proceeding is of record. Service Connection In general, establishing service connection requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a correlation ("nexus") between the disease or injury in service and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). See also 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Also, according to 38 C.F.R. § 3.310, service connection may be granted, as well, on a secondary basis for disability that is proximately due to, the result of, o aggravated by a service-connected disability although in the latter instance compensation is limited to the disability specifically owing to the aggravation. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Veteran has received the requisite diagnosis of sleep apnea based on the results of a sleep study; however, the diagnosis was made more than three decades after separation from service. He does not contend, and the evidence does not suggest, that his sleep apnea is directly related to his service. Rather, he contends that it is related to his service-connected PTSD because either the PTSD itself caused the sleep apnea or because the PTSD caused him to eat more and resultantly gain weight that, in turn, caused or aggravates his sleep apnea. However, the Board disagrees with this posited correlation. The Veteran testified during his rather recent hearing before this Board that he was diagnosed with PTSD, or started experiencing symptoms of PTSD, in 2010-2011 or thereabouts, and that he was diagnosed with sleep apnea "shortly after that". See Board hearing transcript, pages 2 and 3. His wife testified that she believes he has woken up significantly more post-PTSD symptoms onset. But the Veteran's and his wife's hearing testimony conflicts with the clinical evidence, and, ultimately, the clinical evidence is more probative of whether service connection is warranted for sleep apnea. Initially, the Board points out that the Veteran testified during his hearing that PTSD "didn't really start coming into play until probably 10 to 11 years ago," which would put the onset of significant or noticeable symptoms in approximately 2010 or 2011 since, as mentioned, the hearing was in July 2021. Moreover, although he contends that his sleep apnea began shortly after his PTSD, the clinical evidence reflects that it actually onset several years before his PTSD. In this regard, a June 2006 private record from South Sound Pulmonary Associates, PLLC, indicates the Veteran reported snoring regularly, also that it had been occurring for at least four months, and that there had been apneas (meaning cessation of breathing during sleep) since March 2006. It was noted that he "correlates the snoring with a weight gain of approximately 20 pounds." He reported waking up at night for reasons that at the time were unclear, that he falls asleep easily after waking, and he has "no other significant sleep problems." Although it was noted that he had a history of irritability along with memory loss complaints, daytime hypersomnolence, snoring, and witnessed apneas, there is no mention of PTSD, depression, or anxiety. The Board finds that, if he had nightmares owing to his PTSD, including awakening him, it seems only reasonable that he would have reported it instead of contrarily stating that the reasons for waking up were unclear and that he can easily fall asleep again afterwards. It was clinically suspected that he had sleep apnea. An October 2006 private sleep disorders evaluation (Providence Health System) record explains the Veteran had sleep apnea in all positions. Thus, by his timeline as to when his PTSD started (i.e., in approximately 2010-2011), he already had been experiencing the effects of sleep apnea for 4 to 5 years before experiencing any PTSD symptoms. As his sleep apnea pre-dated his PTSD by several years, it logically could not have been caused by his PTSD. There remains for consideration, nonetheless, whether the PTSD alternatively exacerbates (i.e., aggravates) the sleep apnea. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). This argument is partly rooted in the notion that the PTSD caused the Veteran to gain significant weight and, in turn, start experiencing the effects of sleep apnea, which is akin to the weight gain being an "intermediate step". See VAOPGCPREC 1-2017 (Jan. 6, 2017). A March 2018 VA Disability Benefits Questionnaire (DBQ) contains the opinion of the examiner that it is less likely than not the Veteran's sleep apnea is causally related to, or aggravated by, his PTSD. The examiner stated, in pertinent part, as follows: The weight of the medical literature supports that obstructive sleep apnea is a condition in which loose, floppy tissues in the throat occlude the passage of air during the relaxation of sleep. It is thus a biomechanical condition. The weight of the medical literature supports that PTSD is a state of hypervigilance with associated changes in brain neurochemistry. The weight of the medical literature further supports that PTSD and sleep apnea are correlated, which means that they frequently appear in the same individuals. However, the neurochemical changes in the brain do not cause the tissues in the throat to become loose and floppy. This is perhaps best explained by an analogy. I live in Seattle and carry a rain coat many days. My carrying a raincoat and the number of days of rain are correlated, but I do not cause it to rain by carrying a raincoat. In summary, PTSD and obstructive sleep apnea are indeed correlated, but neither causes the other. Rather, they are independent variables. The epidemiology of obstructive sleep apnea is discussed at the following link (https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2645248/) to the article "The Epidemiology of Adult Obstructive Sleep Apnea" published in Proceeding of the American Thoracic Society in February 2008. In discussing the potential causes of sleep apnea, this is stated: "Factors that increase vulnerability for the disorder include age, male sex, obesity, family history, menopause, craniofacial abnormalities, and certain health behaviors such as cigarette smoking and alcohol use." Behavioral health conditions are not considered part of the etiology. Rather, the etiology is dependent on factors that directly affect the pharyngeal tissues. The Board sees that, at the time of his complaints and diagnosis of sleep apnea in 2006, the Veteran was 56 years old, a male, and obese; thus, the examiner's opinion is supported by this Veteran's situation as well as medical literature. In providing the opinion, the examiner used the term that there was no "permanent aggravation" of sleep apnea by PTSD. In the context of secondary service connection under 38 C.F.R. § 3.310, aggravation means "any increase in disability" and is distinguished from the more specific definition of aggravation of a pre-existing disease or injury during service as defined in 38 U.S.C. § 1153. Despite the examiner's single use of the term "permanent", the Board finds that his opinion is still more than adequate. An examination report/opinion must be read, as a whole, so in its' entire context. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (a medical report must be read as a whole in the context of the claim and, even an opinion lacking in detail may have some probative value based on the amount of information and analysis contained therein); 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). Here, when read as a whole, it can be reasonably surmised the examiner concluded the Veteran's PTSD does not aggravate (either temporarily or permanently) his sleep apnea based on a lack of medical literature supporting such a finding. Moreover, there is no clinical evidence supporting that it is as likely as not the Veteran's sleep apnea is aggravated, even temporarily, by his PTSD. While his spouse testified during the hearing that he wakes up more, this has not been shown to be a worsening of his sleep apnea rather than an increase in nightmares owing to his PTSD. The proper recourse for that is to file a claim for a higher rating for the PTSD since the rating for the PTSD under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411, accounts for the extent of sleep impairment attributable to this mental disorder. As concerning the Veteran's contention that, since he was diagnosed with PTSD, he has gained significant weight and this, in turn, might have precipitated his diagnosis of sleep apnea, this contention lacks probative value because he was diagnosed with PTSD many years after he was diagnosed with sleep apnea. He nonetheless contends that, at one point, he lost almost 40 pounds but that, over the past year and a half (i.e., since 2020), his flashbacks became more frequent, and he regained almost all those 40 pounds and perhaps even more ("then some"). His wife explained that he eats more when he is anxious or depressed, and that his weight gain has caused or aggravates his sleep apnea. VA has determined that obesity is not a ratable disability for service connection or secondary service connection compensation purposes. However, obesity may act as an "intermediate step" between a service-connected disability and a current disability for which secondary service connection may be established. See VAOPGCPREC 1-2017 (Jan. 6, 2017). It was noted that, according to 38 C.F.R. § 3.310(a), a disability that is proximately due to or the result of a service-connected disease or injury is service-connected, and that "proximate cause" had been defined by Black's Law Dictionary, 213 (7th ed. 1999), as a "cause that directly produces an event and without which the event would not have occurred." As such, in these type cases, VA must resolve: (1) whether a service-connected disability caused a Veteran to become obese; (2) if so, whether the obesity as a result of the service-connected disability was a substantial factor in causing the claimed disability; and (3) whether the claimed disability would not have occurred but for obesity caused by the service-connected disability. More recently, in Walsh v. Wilkie, 32 Vet. App. 300 (2020), the Court again addressed the holding of VAOPGCPREC 1-2017 (Jan. 6, 2017) that obesity can constitute an "intermediate step" in showing secondary service connection, i.e., that service connection is warranted when a service-connected disability causes obesity that, in turn, causes another disability. General Counsel (GC) opinions are binding on the Board but not on the Court. Here, though, there are no probative clinical opinions, based on review of the pertinent evidence and with adequate rationale citing to credible evidence, indicating that it is as likely as not the Veteran's PTSD has caused him to become obese. Further, there are several reasons why this is unlikely. First, the Veteran was obese several years prior to inception of symptoms referable to PTSD. In June 2006, when it initially was suspected that he had sleep apnea, he weighed 251 lbs., and when diagnosed after the sleep study in October 2006, he weighed 231 lbs. Thus, he had lost 20 lbs., not conversely gained weight. The Board also notes that, although he has put the onset of his PTSD symptoms in 2010 or 2011 or thereabouts, a December 2012 VA screening for PTSD was negative, and the earliest clinical finding that he met the diagnostic criteria for PTSD is a social worker record dated in August 2014. Regardless, the onset of his PTSD still was years after his sleep apnea diagnosis and obesity. The Veteran has had the following weights on the dates indicated: 251 lbs. June 2006 241 lbs. July 2006 231- 232 lbs. October 2006 208 lbs. January 2007 228 lbs. March 2011 237 lbs. December 2012 218 lbs. December 2013 221 lbs. July 2014 224 lbs. December 2014 221 lbs. June 2015 225 lbs. September 2015 220 lbs. April 2016 193 lbs. October 2016 207 lbs. October 2017 211 lbs. October 2018 219 lbs. April 2019 Notably, despite complaining of PTSD symptoms and receiving this diagnosis in approximately 2014, the Veteran weighed less in 2014 than in 2006. In other words, his PTSD did not cause him to weigh more than his pre-PTSD level. Second, at the hearing, the Veteran testified that, since being diagnosed with PTSD, at one point, he had lost almost 40 pounds but that, over the past year with his flashbacks getting more frequent, he had put back on almost all those 40 pounds and perhaps even more ("and then some"). Clinical records are not associated with the claims file for that time period, but they are not necessary or determinative because, even assuming for the sake of argument that he had lost approximately 40 pounds and then regained almost all of that weight back, this still would not tend to support his assertion that his PTSD caused his obesity because he essentially returned to his same weight level. Third, the Veteran's wife testified that his "PTSD has made him depressed, and it seems like the only way to alleviate anxiety sometimes is to eat" and that, with the issue of weight, "it depends on, you know, what comes first, you know, the PTSD or the weight gain or back and forth". But, to reiterate, the Veteran weighed 251 lbs., the highest weight noted in the claims file, prior to when he started experiencing significant PTSD symptoms because he stated that his "PTSD didn't really start coming into play until probably" 2010 or 2011 (ten years prior to the hearing before this Board in 2021). In addition, clinical records note occasions when he reported not having anxiety or depression (e.g., December 2014, June 2015, August 2015, October 2017, and April 2019 records). In sum, the Veteran's theory is premised on the less-than-credible statement that his sleep apnea was diagnosed shortly after his PTSD. However, this is not the case. Even if his 2006 report of increasing irritability could have been seen as a symptom of PTSD, he subsequently screened negative for PTSD and there is no probative evidence that irritability caused him to eat to excess such as to gain significant weight. In addition, the Veteran has made two conflicting contentions regarding whether his weight is related to his sleep apnea. When informed that he should lose weight to decrease or resolve his sleep apnea, he argued that his loss of weight had not had a demonstrable effect on his sleep apnea and, therefore, it is his PTSD that is responsible for his sleep apnea. See August and September 2017 VA clinical records. However, he has contradictorily argued that his PTSD has caused his weight gain (despite also contending that he lost considerable weight), which has contributed to sleep apnea. The clinical records, which are more probative than lay statements as to weight, do not support the notion that, while experiencing PTSD symptoms, the Veteran has significantly gained more weight than prior to PTSD. The Board finds that his PTSD did not cause him to become obese, and even if his PTSD caused him to eat during times of depression and/or anxiety, it is immaterial because the evidence is against finding that sleep apnea would not have occurred but for any arguable obesity caused by PTSD as he already had sleep apnea. The Veteran's representative has requested a supplemental medical opinion concerning this posited correlation, but for the reasons and bases discussed the Board finds that additional medical comment is not needed or warranted. The March 2018 medical opinion already of record was based on comprehensive review of the relevant evidence in the claims file and, most importantly, provides the required rationale as concerning both causation and aggravation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). As for the Veteran's and his wife's contention that his PTSD has caused his weight gain, the clinical records are against such a finding; thus, another opinion is not warranted. The Veteran's representative also contends that there is a dearth of information on the relationship between PTSD and sleep apnea in younger Veterans. However, even if true, this is immaterial to this particular Veteran because he was over 55 years of age at the time of his sleep apnea diagnosis and over 60 years of age at the time of his PTSD diagnosis, with no clinical evidence suggesting this is considered a "younger" Veteran. The Veteran has not been shown to have the experience, training, or education necessary to give a probative opinion regarding the origins of his sleep apnea, including in terms of whether directly related or attributable to anything that occurred during his time in the military or as secondary to a service-connected disability including especially his PTSD. This determination is beyond his lay competence. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). See also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). Finally, there is no probative evidence tending to support any notion that the Veteran's sleep apnea alternatively is directly related to his service, particularly since he did not first receive this diagnosis until several decades later. The lapse of time between service separation and the earliest documentation of the now claimed disability is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). For these reasons and bases, service connection for sleep apnea is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Wishard 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.