Citation Nr: 21064076 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 18-32 056 DATE: October 19, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected posttraumatic stress disorder (PTSD), is denied. FINDINGS OF FACT 1. There is a current diagnosis of sleep apnea. 2. PTSD is a service-connected disability. 3. The Veteran's sleep apnea is not caused by service or by his service-connected PTSD disability, nor is his sleep apnea increased in severity beyond the natural progress of the disease by the service-connected PTSD. CONCLUSION OF LAW The criteria for service connection for sleep apnea, to include as secondary to PTSD, have not been met. 38U.S.C. §§1110, 1154, 5103, 5013A, 5107; 38C.F.R. §§3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1961 to April 1966. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded in November 2020 to address the nature and etiology of the Veteran's sleep apnea condition and for the examiner to address whether the Veteran's current symptoms impacting his sleep are associated with his service-connected PTSD. The RO was asked to request an opinion from an examiner regarding whether the Veteran has a current diagnosis of sleep apnea that is proximately due to his service-connected PTSD disability and whether it is aggravated beyond its natural progression by his service-connected PTSD disability. The Board finds that the AOJ has substantially complied with the prior remand directives, to the extent possible. See Stegall v. West, 11 Vet. App. 268 1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) and Dyment v. West, 13 Vet. App. 141, 146-47 (1999) aff'd, Dyment v. Principi, 287 F.3d 1377 (2002) (holding that further remand not necessary under Stegall where the Board's remand instructions were substantially complied with). In summary, the duties imposed by the VCAA have been considered and satisfied. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim herein decided. Therefore, there is no prejudice to the Veteran in the Board proceeding to a decision on these matters, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Accordingly, the Board finds that the Remand directives were substantially complied with and, thus, there is no Stegall violation in this case. The file has been returned to the Board and the matter is now properly before the Board for adjudication. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 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). In short, establishing service connection on a direct basis requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disease or injury. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Establishing service connection on a secondary basis requires evidence (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). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). Evidence of worsening based on aggravation includes "any incremental increase in disability any additional impairment of earning capacity in non-service-connected disabilities resulting from service-connected conditions . . . regardless of its permanence." Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service connection for sleep apnea, to include as secondary to PTSD. The Veteran asserts that he suffers from obstructive sleep apnea which he believes is related to his military service or is attributable to his service-connected PTSD. The Veteran contends that his obstructive sleep apnea (OSA) disability was caused or worsened by the service-connected PTSD. See October 2017 Notice of Disagreement. See also Notice of Disagreement Received May 2018. The Board notes that the Veteran is service connected for PTSD. See Rating Decision Codesheet Received November 2020. A review of the record reveals that the criteria for entitlement to service connection for OSA have not been met. The Veteran was diagnosed in March 2021 with severe OSA. See Tronstone Medical Clinic Sleep & Neuro Diagnostics Study Results Received April 2021. However, there is no competent and credible evidence demonstrating that the Veteran's OSA is related to service, any event of service, or to any service-connected disability. Here, the most probative evidence is the contemporaneous treatment records, including the service treatment records (STRs), which show that sleep apnea was not manifest in service. In other words, although the Veteran later complained of difficulty sleeping several years after discharge, sleep apnea was not identified or manifest during service. STRs show no findings associated with a sleep disorder with no complaints of, treatment for or diagnosis of any sleep issues; moreover, at his separation medical examination in April 1966, the Veteran's systems were clinically evaluated as normal with no sleep issues noted. See Service Treatment Medical Records Received December 2015. Aside from the March 2021 sleep study which includes a diagnosis of severe sleep apnea, the Veteran's post service treatment records do not offer any information regarding the Veteran's sleep apnea disability. The March 2021 sleep study report states that the Veteran experienced normal sleep architecture with Stage N1, Stage N2, and Stage REM sleep all within normal ranges. Additionally, it is noted that the Veteran demonstrated an increased arousal and PLMs secondary to fragmented sleep and sleep apnea and displayed loud excessive snoring which could be heard outside of the Veteran's room. See C & P Exam dated April 2021. The Board notes that a July 2020 VA Disability Benefits Questionnaire (DBQ) examination for PTSD indicates that the Veteran currently suffers from a chronic sleep impairment and sleep disturbance that impact his sleep which have been associated with his service-connected PTSD. This examination, however, does not indicate that the Veteran has sleep apnea. The Veteran was afforded a VA DBQ examination to specifically address the etiology of his sleep apnea disability in December 2020. The examiner stated that the Veteran underwent a sleep study in March 2021 which was consistent with severe obstructive sleep apnea and also noted that the Veteran is service connected for PTSD. Here, the Veteran reported developing poor sleep in the 2000s. The examiner provided a citation regarding the medical origin of sleep apnea from the Mayo Clinic and stated that "Obstructive sleep apnea occurs when the muscles in the back of your throat relax too much to allow normal breathing. These muscles support structures including the back of the roof of your mouth (soft palate), the triangular piece of tissue hanging from the soft palate (uvula), the tonsils and the tongue. When the muscles relax, your airway narrows or closes as you breathe in and breathing may be inadequate for 10 seconds or longer. This may lower the level of oxygen in your blood and cause a buildup of carbon dioxide." Based on this information, the examiner concluded that obstructive sleep apnea is not caused by PTSD and therefore it is his medical opinion that the current obstructive sleep apnea disability is less likely than not proximately due to or the result of the Veteran's service connected PTSD. With respect to aggravation, the December 2020 examiner stated that it is his medical opinion that the current obstructive sleep apnea disability is less likely than not aggravated beyond its natural progression by the Veteran's service connected PTSD. Additionally, the examiner stated that there was not a sleep study done while in service from December 1961 to April 1966 to determine a baseline level of severity. In addition, the examiner stated that there is no evidence in the medical records that the obstructive sleep apnea was aggravated beyond its natural progression by the Veteran's service connected PTSD as there is only the initial sleep study performed in March 2021 with no follow-up sleep studies objectively demonstrating worsening of the Veteran's obstructive sleep apnea secondary to PTSD. The Veteran was afforded another DBQ examination to assess his sleep apnea disability in April 2021. The examiner opined that the diagnosed sleep apnea disability is less likely than not proximately due to or the result of the Veteran's PTSD. As rationale, the examiner stated that PTSD has not been conclusively proven to cause sleep apnea and further noted that obstructive sleep apnea occurs when the muscles in the back of your throat relax too much to allow normal breathing. The examiner further noted that these muscles support structures including the back of the roof of your mouth, the triangular piece of tissue hanging from the soft palate, the tonsils and the tongue. With respect to aggravation, the examiner noted that the current severity of the sleep apnea disability is not greater than the baseline. As rationale, the examiner noted that the medical evidence was not sufficient to support a determination of a baseline level of severity and there was no evidence that the sleep apnea was aggravated beyond its natural progression by PTSD. In this case, the Veteran's current disability of OSA is not in dispute. However, as discussed above, the record does not contain evidence either establishing in-service occurrence or indicating that the Veteran's OSA is associated with his service or his service-connected PTSD. During the December 2020 VA examination, the Veteran reported the onset of his sleep difficulties in the 2000s, many decades after his active duty service. Moreover, the Veteran's PTSD was diagnosed in October 2014, with the Veteran reporting worsening of his symptoms in 2007 (which was also several decades after his active duty service). See Initial PTSD DBQ dated June 2017. The Board acknowledges that although the July 2020 VA Disability Benefits Questionnaire (DBQ) examination for PTSD indicates that the Veteran currently suffers from symptoms impacting his sleep which are related to his service-connected PTSD, there is no evidence that his obstructive sleep apnea disability is caused or aggravated by PTSD as explained in the opinions from the December 2020 and April 2021 examiners. After examining all the evidence, lay and medical, the Board finds that the Veteran's sleep apnea is not increased in severity (aggravated) beyond the natural progress of the disease by his service-connected PTSD. The VA examiners, as detailed above, each provided a negative nexus opinion on the question of the relationship between sleep apnea and PTSD. The examiners were unable to establish a baseline severity of the sleep apnea. The record does not establish a baseline level of severity of the sleep apnea to any extent. The record is devoid of any period in time where there were higher or lower degree of symptoms. The two etiological opinions of record provided in December 2020 and April 2021 reflect that the VA examiners thoroughly assessed the Veteran's medical history, considered the Veteran's report of symptoms and onset of his sleep apnea disorder prior to rendering the medical opinions offered. Factors for assessing the probative value of a medical opinion are the examiner's access to the claims file and the thoroughness and detail of the opinion. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The medical opinions are based on sufficient facts and data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The examiners have the skill and expertise to analyze the medical evidence and render an opinion as to the etiology of the Veteran's claimed disorder. See Black v. Brown, 10 Vet. App. 279, 284 (1997). Moreover, the VA medical examiners relied on the evidence in the Veteran's medical record to inform their opinions and cited to current medical literature to support the rationale. Thus, the Board places significant probative value on these opinions and finds that service connection is not warranted. Since the diagnosis of sleep apnea in March 2021, the symptoms appear from the record to be consistent over time. The record does not contain any evidence, lay or medical, describing symptoms prior to the March 2021 diagnosis that would support a finding of aggravation or causation. The Board acknowledges the Veteran's assertions regarding the association between his sleep apnea disability and service-connected PTS; however, while the Veteran is competent to provide statements relating to symptoms or facts of events that he has observed and is within the realm of his personal knowledge, he is not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). The Veteran is not competent to assess the medical etiology of his disability and whether it is secondary to other conditions. Therefore, the Board places greater reliance on the objective medical evidence. Jandreau v. Nicholson, 492 F 3d 1372, 1377 (Fed Cir 2007). For the reasons described above, the Board finds that a preponderance of the lay and medical evidence is against finding his sleep apnea was caused or aggravated by active duty service on a direct basis or by the service-connected PTSD on a secondary basis. For these reasons, the appeal must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C. § 5107(b) and 38 C.F.R. § 3.102. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dorsey-Kwansa, 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.