Citation Nr: 21066899 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 14-30 099 DATE: November 2, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected posttraumatic stress disorder (PTSD), is granted. FINDINGS OF FACT 1. There is no competent and credible evidence showing that the Veteran's currently diagnosed OSA began during active service or is otherwise related to an in-service event, injury, or disease. 2. The Veteran is service connected for PTSD. 3. Obesity has acted as an "intermediate step" between the Veteran's service-connected PTSD and his currently diagnosed OSA. CONCLUSION OF LAW The criteria to establish service connection for OSA as secondary to service-connected PTSD have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1979 to August 1983 in the United States Marine Corps and from December 2004 to September 2005 and from February 2008 to December 2008 in the United States Air Force. The Veteran also served in the United States Air Force Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing with a Veterans Law Judge (VLJ) in December 2016. A copy of that hearing is associated with the record. This hearing was before a now-retired judge. In a September 2021 letter, the Board notified the Veteran that the VLJ who held the hearing was no longer employed by the Board and offered the Veteran the opportunity to have an additional hearing; however, the Veteran did not respond to this letter within the allotted 30-day time period, as such, it is assumed that he declined the opportunity for another Board hearing. In March 2018 and September 2019, the Board remanded the case to the RO for additional development. In August 2020, the Board denied the claim for service connection for sleep apnea. On appeal, the United States Court of Appeals for Veterans Claims (CAVC) issued a March 2021 Order that vacated the Board's prior August 2020 decision and remanded for development in compliance with the Order. The Court's Order granted a March 2021 Joint Motion for Remand (JMR) filed by both VA and the Appellant (the Parties), which agreed that the VA medical opinion upon which the denial was based was inadequate to decide the claim. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Laws and Regulations - Service Connection Claims Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). Only chronic diseases listed under 38 C.F.R. § 3.309(a) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303(b). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Establishing service connection generally requires (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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to service connection for OSA The Veteran contends that he developed sleep apnea while in service. See April 2014 Notice of Disagreement. Alternatively, he contends that his PTSD or lower extremity disabilities led to his obesity and that is the underlying cause of his OSA. See August 2019 Correspondence to VA. After review of the evidence, both lay and medical, the Board finds that direct service connection for OSA is not warranted. Nevertheless, the Board does find sufficient evidence to conclude that the Veteran's OSA is related to his service-connected PTSD. As an initial matter, VA treatment records confirm that the Veteran has a current diagnosis of OSA for which he uses a continuous positive airway pressure (CPAP) machine. See August 2018 VA Sleep Apnea Examination Report. Turning to the evidence, the Veteran testified that he first noticed sleep difficulties during his deployment to Iraq in 2008. At that time, his duties required him to work shifts that varied between daytime and night. Further, when he worked a night shift and slept during the day, sleep was difficult due to noise. He recalled he sometimes woke himself up with a choking sound. During deployment, he never slept more than two hours at a time and often took catnaps when he was on duty. See December 2019 Hearing Transcript, page 3, 5, 9, 10, 11. Service treatment records for his service in 1979 to 1983 and December 2004 to September 2005 show no complaints, diagnosis, or treatment related to OSA. In both the July 1983 separation examination, September 2005 separation examination, and the November 2005 post deployment assessment, the Veteran denied any sleeping difficulties. If symptoms of OSA were present during service, the Board would expect the Veteran would have responded "yes" when asked if he had difficulty sleeping or felt tired after sleeping because a reasonable person would have interpreted the question to include symptoms of OSA. Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011). Moreover, the Veteran responded negatively when asked whether he had any other conditions at separation other than those mentioned, and the Board would thus expect the Veteran to have also responded affirmatively to having symptoms of OSA such as snoring or waking up gasping or with a choking sound. Id. The Board notes that the Veteran did complain of sleep difficulty in a service treatment record in June 1985 or 1989, as the date of the record in unclear; yet either date would have been while he was a member of the Reserves. The Veteran complained of not getting a straight night sleep and was very hyper at night which caused him to feel tired during the day. It did not appear he was diagnosed with any medical condition and was allowed to return to duty and no injury or disease was shown during ADT or IADT. In an October 2008 post deployment evaluation, the Veteran complained of waking up in the middle of the night. The Veteran did not have any psychiatric symptoms; his complaint was diagnosed as sleeping adjustment. The Veteran pointed to another October 2008 record which stated "Habits: sleeping habits. Exercising regularly." He recalled he started to tell the medical provider about his sleeping habits, but the provider interrupted him asking whether he exercised on a regular basis. See December 2019 Hearing Transcript, page 5. OSA is not shown by medical evidence until approximately April 2013 in a sleep study, years after the Veteran's separation from his last active duty service ending in 2008. The Veteran testified he retired from service in 2012 but this appears to be a reference to when he retired from the Reserves, not active duty. A May 2009 VA treatment record noted the Veteran complained of sleep problems but attributed the problems to anxiety. At that time, he denied specific OSA symptoms such as snoring, stopped breathing while sleeping, waking up gasping for air, and excess daytime fatigue. The Veteran presented for an August 2018 VA examination, at which time he was interviewed by a VA examiner who reviewed the pertinent medical history, service treatment records, and the Veteran's statements and testimony before the Board and performed an examination. The Veteran reported to the VA examiner sleep issues in Iraq due to his inconsistent shift schedule preventing a routine sleep pattern. The VA examiner, however, concluded it was less likely than not OSA resulted from the Veteran's active duty service, including his deployment in Iraq disrupting the Veteran's sleep pattern. The examiner explained that the Veteran had OSA which occurred due to a passive collapse of the oro- and/or nasopharynx during inspiration while asleep. This was caused by anatomical abnormalities including obesity, redundant tissue of the soft palate, enlarged tonsils or uvula, a low soft palate, or a large or posterior located tongue. There were other causes such as neuromuscular disorders or use of alcohol or sedatives before bedtime, all of which did not appear to apply in the Veteran's case. Important risk factors for OSA included advancing age, male gender, and craniofacial or upper airway soft tissue abnormalities. The strongest risk factor for OSA, male or female, was obesity. The VA examiner addressed the Veteran's testimony and reports of a disrupted sleep pattern as well as symptoms he noticed. According to the examiner, while snoring and waking up were common OSA complaints and relatively sensitive to the diagnosis, these symptoms lack specificity. Similarly, a sleep study test alone was not enough and must be supported by clinical rationale. In this instance, the Veteran's specific symptoms, especially sleep troubles due to work schedules changes, were more consistent with insomnia. This complaint could co-exist with medical, psychological, sleep, or neurological disorders. It was associated with acute stress, medication, poor sleep habits, or changes in the sleep environment. Based upon review of the service treatment records, which would include the Veteran's post deployment complaints in 2008, there was no objective clinical evidence to support a diagnosis of OSA occurring during service. The Veteran had OSA risk factors of age, male gender, and obesity which more likely caused his OSA. In regard to direct service connection, the Board finds the opinion competent and credible, and thus provides the opinion substantial probative weight. The opinion was rendered by a trained medical professional based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. Notably, the examiner took into account the Veteran's complaints and explained why it was less likely than not that OSA began during service or was otherwise related to service. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). The Board has considered the Veteran's statements, to include his assertions that symptoms of OSA were noticeable starting during his deployment in Iraq. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., waking up in the middle of the night; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. To the extent the Veteran asserts a continuity of symptomatology beginning during service, the Board finds these statements to lack credibility as they are in direct conflict with the Veteran's report May 2009 when he denied specific OSA symptoms such as snoring, stopped breathing while sleeping, waking up gasping for air, and excess daytime fatigue. The Board finds this report of medical history to be more reliable than more recent assertions as it was done close in time to service. See Curry v. Brown, 7 Vet. App. 59 (1994). The Board finds the most probative evidence, specifically the August 2018 VA medical opinion, indicate the Veteran's OSA onset after service and was unrelated to service, to include trouble sleeping while deployed. Accordingly, service connection on a direct basis is denied. The Board will now address the Veteran's alternative theory of entitlement - that his OSA is secondary to his service-connected PTSD. As noted above, to establish service connection on a secondary basis, there must be (1) evidence of a current disability (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. at 512. As established, the Veteran has been diagnosed with OSA, and is service connected for PTSD. Thus, the first two elements of secondary service connection are met. The dispositive issue then becomes whether there is probative medical evidence establishing an etiological link between the claimed disability and the service-connected disability. The Board finds that the competent evidence of record supports service connection on a secondary basis. The August 2018 VA medical opinion noted above does not address whether the Veteran's OSA is secondary to any service-connected disabilities. In November 2019, a VA medical opinion was obtained which found sleep apnea was less likely as not proximately due to, or the result of, the Veteran' service-connected disability. In the opinion, the examiner conceded that the Veteran's obesity was a substantial factor in causing his sleep apnea and noted the prevalence of sleep apnea is increased in patients with certain medical conditions, including PTSD. Nevertheless, the examiner concluded that review of the most current evidence-based medical literature did not show any pathophysiologic evidence to correlate PTSD as a cause/etiology and/or aggravating factor of OSA, or to support any physical or emotional factors from PTSD that influence obstruction of the airway in OSA. Instead, the examiner noted the Veteran's OSA was at least as likely as not due to his male gender, advancing age, and/or obesity. As decided in the JMR, the November 2019 medical opinion is inadequate insofar as the examiner failed to address whether the service-connected disabilities, or medications used to treat those disabilities, caused his obesity, and led to his OSA. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). More recently however, another medical opinion was added into the record. Specifically, a private physician opined, in August 2021 correspondence, that it was at least as likely as not that the Veteran's service-connected PTSD and his left foot and right ankle conditions independently caused him to develop obesity, which in turn caused him to develop OSA. This private physician, Dr. V.Y.Z., is a Board-certified physician in Neurology and Sleep Medicine, and is employed as a Sleep Medicine Physician. Dr. V.Y.Z. indicated review of the Veteran's claim file, to include military and treatment records. Moreover, Dr. V.Y.Z. reviewed medical literature which found not only prevalence of OSA in those with PTSD, but also a prevalence of obesity in those with PTSD, and the relationship between obesity and OSA. In alignment with the reviewed medical literature, Dr. V.Y.Z. found that the Veteran went from having a body mass index (BMI) of 25.8 as documented in his 1987 enlistment examination to a BMI of 34.4 at the time of his sleep study and that research supported the finding that individuals with PTSD have a predisposition to develop obesity. In addition, the Veteran's psychotropic medication history included two medications that are shown to have the side effect of weight gain. Thus, it is the opinion of Dr. V.Y.Z. that it was at least as likely as not that the Veteran's OSA was caused by his service-connected PTSD with obesity serving as an intermediate step. The Board finds the August 2021 private medical opinion from Dr. V.Y.Z. to be competent and credible and assigns it significant probative weight. It is clear from the report that Dr. V.Y.Z. is competent to provide the opinion as she is a Board-certified practitioner in the field. Moreover, Dr. V.Y.Z. reviewed the claims file of the Veteran and was apprised of the military and medical history of the Veteran. Dr V.Y.Z. addressed the competing VA medical opinion. Finally, Dr. V.Y.Z. cited to medical literature in support of the conclusion, and the opinion had supporting rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301-02 (2008) (an opinion must be consistent with the medical evidence of record and contain clear conclusions with supporting data connected by a reasoned medical explanation). In 2018, the U.S. Court of Appeals for Veterans Claims issued a precedential decision that upheld VA's determination that obesity is not eligible for service connection. See Marcelino v. Shulkin, 29 Vet. App. 155 (2018). In addition, VA's Office of General Counsel (OGC) issued a precedential opinion, which concluded that obesity per se is not a disease or injury for purposes of 38 U.S.C. §§ 1110 and 1131 and therefore may not be service connected on a direct basis. Because it occurs over an extended period of time, the onset of obesity cannot qualify as an in-service "event" for the purposes of establishing service connection. However, the opinion recognizes that obesity may act as an "intermediate step" between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310(a). See VAOPGCPREC 1-2017 (Jan. 6, 2017). (Continued on the next page) The August 2021 private medical opinion in this case concluded that the Veteran's obesity was an intermediate step between the service-connected PTSD and his OSA. Accordingly, service connection for OSA, as secondary to his service-connected PTSD, is therefore granted. 38 C.F.R. § 3.310(a); VAOPGCPREC 1-2017 (Jan. 6, 2017). S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Moldawer, 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.