Citation Nr: 21066007 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 19-22 194 DATE: October 28, 2021 ORDER Entitlement to service connection for obstructive sleep apnea, to include as secondary to posttraumatic stress disorder (PTSD), is denied. FINDING OF FACT Obstructive sleep apnea did not manifest during service and is not otherwise related to service or caused or aggravated by PTSD. CONCLUSION OF LAW The criteria for entitlement to service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1964 to August 1966. The Veteran's July 2019 VA Form 9, Appeal to the Board indicated that the Veteran wanted a hearing before the Board of Veterans' Appeals (Board) at his local VA office. In an October 2019 letter, the Veteran's representative at the time notified the Board that the Veteran wished to waive the request for a Board hearing. Thus, the Board considers the request for a hearing withdrawn. In an April 2021 decision, the Board remanded the Veteran's claim to obtain a VA examination and opinion related to the Veteran's sleep apnea. The Board finds there has been substantial compliance with the Board's directives and will now evaluate the Veteran's claim on the merits. Service Connection Entitlement to service connection for obstructive sleep apnea The Veteran believes that his obstructive sleep apnea had its onset in service or is related to the service-connected PTSD. The Veteran has reported that he gets approximately three to four hours of sleep a night. See April 2016 VA 21-4138 Statement in Support of Claim. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a disability, a Veteran must show: (1) the existence of a present disability; (2) 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. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury, whether by causation or aggravation. Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, regarding the Veteran's claim on appeal. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. The Board has carefully reviewed the evidence of record and finds the preponderance of the evidence is against the claim for service connection for obstructive sleep apnea. The reasons follow. As to evidence of a current disability, an April 2021 VA examination report shows that the Veteran has obstructive sleep apnea. A July 2014 sleep study performed outside of VA also shows a diagnosis of mild obstructive sleep apnea. Therefore, the facts establish that the first element of a service-connection claim is met. As to evidence of an in-service disease or injury, the service treatment records do not show that the Veteran complained of or was treated for obstructive sleep apnea during service. The August 1966 Report of Medical History completed at service discharge shows that the Veteran specifically denied having or ever having shortness of breath or frequent trouble sleeping. Furthermore, the August 1966 Report of Medical Examination from service separation shows that clinical evaluations of the Veteran's lungs and chest, nose, sinuses, and mouth and throat were all normal. The Veteran has not alleged in-service symptoms of sleep apnea. Thus, the preponderance of the evidence is against a finding that the Veteran had obstructive sleep apnea during service, and the facts do not establish the second element of a direct service-connection claim. Additionally, the Board finds the preponderance of the evidence is against a nexus between the current diagnosis of sleep apnea and service. For instance, sleep apnea was first diagnosed in July 2014 based upon a sleep study. At the April 2021 VA examination, the Veteran had relayed to the examiner that his wife had told him he had started to snore and would stop breathing two to three times per night approximately one year earlier, which would place the onset of symptoms of sleep apnea in 2013, which is more than 45 years following service discharge, which does not establish a nexus to service. Furthermore, the Veteran was afforded a VA examination in April 2021. Within the examination report, the examiner concluded that the Veteran's obstructive sleep apnea was less likely than not incurred in or caused by service. The examiner stated that the Veteran had no issues related to sleep apnea prior to military service. The examiner noted the Veteran's report that his wife stated he started to snore more and stopped breathing two or three times per night for about a year prior to 2014. The examiner further documented the Veteran's report that his wife would have to wake him or turn on his side so that he can stop snoring and continue breathing. The examiner noted that there was a 40-year gap in time from the Veteran's separation of service to the date of diagnosis of obstructive sleep apnea in 2014 and found it was less likely than not that sleep apnea had its onset in service. The Board finds that the April 2021 VA opinion is competent and probative regarding the claim for direct service connection for sleep apnea. The examiner conducted an in-person examination, reviewed the evidence of record, and provided a rationale for the conclusion, which was based upon the facts in the claims file, which includes the facts reported by the Veteran that he first started experiencing symptoms of sleep apnea in approximately 2013. The Board notes that the Veteran is not alleging the onset of sleep apnea symptoms during service. There is no competent evidence to weigh against this negative medical opinion. As a result, the Board finds that the preponderance of the evidence is against a finding that sleep apnea had its onset in service, and, instead, had its onset decades after service discharge. In a March 2018 statement, the Veteran's wife stated that the Veteran's sleep apnea machine was used because the Veteran would stop breathing when he was sleeping and that he would snore very loudly. She described having to shake the Veteran so that he will start back breathing if he is not on the machine. She also stated that the Veteran sometimes sits up at night because of being fearful of not breathing, even though he has the machine. The Board finds that the Veteran's wife's documentation of her observations are competent and credible; however, this does not establish a nexus to between the post-service diagnosis of sleep apnea and service. Thus, for all the reasons laid out above, the Board finds the preponderance of the evidence is against a finding that the Veteran had obstructive sleep apnea during service, and the facts do not establish that the second and third elements of a service-connection claim on a direct basis are met. Thus, service connection on a direct basis is not warranted. Despite not meeting the requirements for service connection on a direct basis, the Board will still determine whether the Veteran meets the requirements for service connection on a secondary basis, as the Veteran has asserted that his obstructive sleep apnea is due to his service-connected PTSD. As to evidence of a nexus between sleep apnea and the service-connected PTSD, the Board finds that the preponderance of the evidence is against a nexus. Within the April 2021 VA examination report, the examiner concluded that the Veteran's obstructive sleep apnea was less likely than not due to or the result of the service-connected PTSD. The examiner explained that sleep apnea is a physical oral tissue collapse condition and is not related to PTSD. The examiner noted that the conditions of sleep apnea and PTSD may co-exist; however, sleep apnea is an obstructive process of the oral-pharyngeal airway, which he wrote is a separate and unrelated entity to the PTSD/mental health condition, which mental health condition does not cause the physical airway obstruction. Additionally, the examiner stated that sleep apnea was not shown to have had onset in service or for many years after service. Finally, the examiner noted that there was no positive, scientific evidence of an association between sleep apnea and exposure to Agent Orange; and there is no medical evidence that Agent Orange actually caused sleep apnea. An addendum opinion was obtained in July 2021. The July 2021 VA examiner stated that the Veteran stated that he did not have any issues or past diagnoses of sleep apnea during service and did not have symptoms until after 40 years of separation from the service. Thus, the July 2021 VA examiner concluded that the obstructive sleep apnea is less as likely as not aggravated beyond its natural progression by the service-connected PTSD. Additionally, the examiner stated that there was no medical literature supporting that PTSD causes or aggravates obstructive sleep apnea. The Board finds that the April 2021 and July 2021 VA opinions are competent and probative regarding secondary service connection that the service-connected PTSD did not cause or aggravate the Veteran's sleep apnea. The examiner reviewed the evidence of record and provided a rationale for the conclusions, which rationale was based on medical principles and medical literature. Because the examiner clearly opined that there was no medical relationship between the service-connected PTSD and obstructive sleep apnea, the examiner's statements rule out the possibility that the service-connected PTSD may aggravate sleep apnea. Regardless, the examiner addressed aggravation within the addendum opinion. Thus, the Board finds that the examiner's opinions addressed both causation and aggravation and is, therefore, probative evidence regarding whether the service-connected PTSD caused or aggravated the diagnosis of sleep apnea. As such, the Board finds that service connection is not warranted for sleep apnea based on a secondary basis. The Veteran is competent to describe his obstructive sleep apnea symptoms. The Veteran is not alleging the onset of sleep apnea symptoms in service but rather in approximately 2013. To the extent that the Veteran has implied that his obstructive sleep apnea is caused or aggravated by the service-connected PTSD, he is not competent to make such assertions, as medical expertise is required. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's opinion as to the cause of his sleep apnea is nonprobative evidence. At the present time, there is no competent evidence to weigh against the April 2021 and July 2021 VA negative nexus opinions as to both direct and secondary service connection for sleep apnea. For all the reasons laid out above, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for obstructive sleep apnea, to include as secondary to the service-connected PTSD. Thus, as the preponderance of the evidence is against the claim, there is no reasonable doubt to be resolved, and the claim for service connection for obstructive sleep apnea is denied. 38 U.S.C. § 5107(b). A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Griffin, 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.