Citation Nr: 21068112 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 17-04 181 DATE: November 9, 2021 ORDER Entitlement to service connection for a cervical spine disability is denied. Entitlement to service connection for obstructive sleep apnea is denied. FINDINGS OF FACT 1. A cervical spine disability was not manifest in service and is not otherwise attributable to service. 2. Obstructive sleep apnea was not manifest in service and is not attributable to service. 3. Obstructive sleep apnea is unrelated (causation or aggravation) to a service-connected disease or injury. CONCLUSIONS OF LAW 1. A neck disorder was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303. 2. Obstructive sleep apnea was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 3. Obstructive sleep apnea is not proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training from June 1978 to October 1978, and active duty from September 1994 to December 1994, January 2002 to October 2002, and February 2003 to July 2004. Service Connection Service connection may be established for disability resulting from personal injury or disease contracted in the line of duty in the active military, naval, air service, or space service. 38 U.S.C. §§ 1110, 1131. To establish a right to compensation for a present disability, a Veteran must show: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); see also Davidson v. Shinseki, 581 F.3d 1313, 131516 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also 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). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 51112 (1995). For a medical opinion (i.e., medical evidence) to be given weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Neck pain During the Veteran's final period of active duty, the Veteran was found by a Medical Evaluation Board to have gout, low back pain, left knee pain, hypertension, and psoriasis. After a physical examination, a narrative summary noted these disabilities. On a section of the examination report for the spine, the medical professional who performed the examination noted not applicable (NA) next to range of motion testing for the cervical spine. There is no mention of any cervical spine complaints at that time. Private treatment records from October 2005, November 2007, January 2008, etc. had no reports on the private records in the sections noting neck problems. VA treatment records during this time period also do not note any problems of the neck. See, e.g., April 2006 VA primary care note (noting the Veteran's neck had no JVD (Jugular Vein Distention), no adenopathy, thyroid gland symmetric at palpation, no nodule, and no carotid bruits, and range of motion testing of the musculoskeletal system was normal, muscle tone adequate, and no deformities); October 2006 VA primary care note (noting the same). There are reports of torticollis. See, e.g., June 2009 cervical spine study. A March 2008 VA treatment indicated back pain, with neck MRI ordered. A VA examination in April 2008 noted no Intervertebral Disc Syndrome (IVDS) or ankylosis of the cervical spine and there was no involvement of the spinal disorder on the cervical spine. A May 2008 MRI indicated the Veteran had straightening of lordosis as seen in pain or spasm, with no significant central canal stenosis or nerve root narrowing. An August 2008 VA psychiatric note indicates that the Veteran's wife reported the Veteran injured his neck after a fall several years before. A radiology study dated in June 2009 found left C2, C3, and C4 neural foramina secondary to posterior osteophytes. A February 2012 MRI of the cervical spine found .9 cm lesion or bone marrow abnormality centrally at C2. In addition to clinical correlation additional evaluation is recommended with whole body bone scan and dedicated CT of the cervical spine. There was also mild underlying cervical degenerative disc disease. A private April 2012 three phase bone scan notes while body planar views showed thoracolumbar scoliosis, but no other areas with significant blastic abnormalities. A November 2014 VA treatment record note indicates the Veteran's symptoms are 5/6 level pain in the left upper trapezius muscles, with minimal tenderness and stiffness in his paravertebral cervical muscles, and with minimal muscular swelling in his paravertebral cervical muscles. Treatment records continue to report pain of the cervical spine. The Board acknowledges that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran is competent to report neck pain. While the Veteran is competent to report having experienced cervical symptoms (pain) since service, he has not done so here. In any event, such statements would not be credible. These statements contradict the physical examination prior to separation, which did not report any cervical spine problems after examination. The Veteran's post-service medical records not only are negative for any cervical spine treatment or problems but contain medical findings of normal neck. Given the above, the Board assigns low probative value to any statements regarding the symptoms of neck disability having started in service and continued since. In short, the credible and probative evidence establishes that the Veteran's neck disability was not manifest during service and is not due to service. Prior to separation, there was no finding after a physical examination of cervical spine problems. There is no competent evidence of a cervical spine disability until many years post service. The lay assertions to the contrary are not credible and are outweighed by the probative medical evidence. As the preponderance of the evidence is against the claim to service connection, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 2. Sleep apnea The Veteran contends his sleep apnea is secondary to (is proximately due to or the result of) his service-connected PTSD. In addition to direct service connection, secondary service connection is warranted for disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease or injury will be service connected. 38 C.F.R. § 3.310(b). There are report that the Veteran had sleep impairment as due to a psychiatric disorder as opposed to sleep apnea several years before apneas were first noted. See, e.g., April 2009 VA examination report. The Veteran was referred for sleep evaluation in July 2012 per VA physical medicine note. In September 2012, a VA treatment record notes significant signs and symptoms suggestive of Sleep Apnea. A July 2013 VA sleep medicine note indicates the Veteran has severe obstructive sleep apnea. A VA medical opinion dated in January 2020 states the Veteran's sleep apnea is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected condition. The examiner explained that the medical literature (Fishman's Pulmonary Diseases and Disorders, 5th edition; UpToDate; Harrison's Principles of Internal Medicine, 20th edition) review does not show PTSD as a cause of, or a risk factor to develop obstructive sleep apnea. The VA examination report dated in January 2020 notes sleep apnea was diagnosed in July 2013 and available documents show diagnosis of sleep apnea after a sleep study was done in July 2013. A CPAP was prescribed. The September 2021 Written Brief Presentation argues that data show that Obstructive Sleep Apnea (OSA) is particularly prevalent in patients with psychiatric disorders. Psychiatric disorders and OSA are also frequently comorbid, especially with depression. It has been suggested that the mood disturbance may represent a consequence of sleep apnea; but it is also argued that psychiatric disorders and their pharmacological treatment may contribute to and promote the development of sleep apneas. Overall, the evidence is stronger and is rapidly building for an association of OSA with depression and anxiety. In a large cohort study of patients with sleep apnea, psychiatric comorbidity included depression (21.8%), anxiety (16.7%), posttraumatic stress disorder (PTSD) (11.9%), psychosis (5.1%), and bipolar disorders (3.3%). The brief further states a recently published systematic review indicated that there may be an increased prevalence of OSA in individuals with major depressive disorder and with PTSD. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4610889/. For U.S. veterans with post-traumatic stress disorder (PTSD), the risk of sleep apnea increases along with the severity of the mental health condition, a new study contends. Sleep apnea a common sleep disorder in which breathing frequently stops and starts is potentially serious. Researchers looked at 195 Iraq and Afghanistan veterans who visited a Veterans Affairs outpatient PTSD clinic for evaluation. About 69% were at high risk for obstructive sleep apnea, and the risk rose along with PTSD symptom severity, the study authors said. https://www.psychiatryadvisor.com/home/topics/anxiety/ptsd-trauma-and-stressor-related/ptsd-severity-linked-to-higher-risk-of-sleep-apnea-in-veterans/. Finally, the brief alleges a 2018 comprehensive study published in the Primary Care Companion for CNS Disorders, was conducted to examine the correlations between obstructive sleep apnea (OSA) and psychiatric disorders such as major depressive disorder (MDD), posttraumatic stress disorder (PTSD), or bipolar disorder (BD) and whether comorbid psychiatric diagnosis increases the risk of OSA. This study, in which three of the four authors are employed as VA Mental Health professionals, showed a high prevalence of OSA in psychiatric patients, particularly with MDD (37.8%) and PTSD (35.5%) and less so with BD (16.7%). Among all patients with OSA (n = 155), those with comorbid BD and PTSD had a significantly higher rate of OSA than those with BD alone but not with PTSD alone. We also found a statistically significant higher incidence of OSA in male veterans with either MDD comorbid with PTSD or BD comorbid with PTSD compared with either mood disorder or PTSD alone. The final conclusions from the study showed a high prevalence of OSA in psychiatric patients, particularly in those with PTSD and Midland less so with BD. There was a statistically significant increase in the incidence of OSA in male veterans with either BD with comorbid PTSD or MDD with comorbid PTSD. (https://www.ncbi.nlm.nih.gov/pubmed/30107101). The Board acknowledges that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability subject or symptoms subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Layno v. Brown, 6 Vet. App. 465, 470 (1994). While apneas are lay observable, the Veteran has not stated, nor does the evidence show, that apneas started in service. Regarding sleep apnea as due to a service-connected disease or injury, to the Veteran and the representative have argued that PTSD caused sleep apnea, the Veteran nor the representative has not been shown to have the medical expertise to offer an opinion on such a complex medical question, such as the etiology of sleep apnea. Specifically, with regards to PTSD, the 2020 VA opinion states there is not an association between PTSD and sleep apnea, based on review of the medical literature. The representative has submitted medical citations showing a correlation (comorbidity) between sleep apnea psychiatric disorders. The medical citations submitted by the representative discuss the association of psychiatric disorders and sleep apnea, including documenting that sleep apnea is comorbid with psychiatric conditions, especially mood disorders, PTSD, and anxiety disorders. Competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses. 38 U.S.C. § 5103; 38 C.F.R. § 3.159(a). However, an association between an acquired psychiatric disorder (to include PTSD) and sleep apnea is not the same thing as causation or aggravation. One of the articles cited specifically states that the link between sleep apnea and PTSD in veterans is not clear. They do not establish causation or aggravation with respect to the Veteran's obesity and his service-connected PTSD or other service-connected disabilities. The Board finds these citations do not establish that the Veteran's PTSD or other service-connected disability caused sleep apnea. A medical opinion will be considered probative if it includes clear conclusions and supporting data with a reasoned analysis connecting the data and conclusions. A medical opinion that is factually accurate, fully articulated, and based on sound reasoning carries significant weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The individual who provided the opinion, a physician, is competent as a medical professional to provide a medical opinion on the matter. The physician reviewed the file and examined the Veteran. The VA opinion states that in the case of the Veteran, sleep apnea was not due to service-connected disabilities. The VA medical professional's opinion is more probative on this matter and the Veteran's and representative's statements do not outweigh the probative VA opinion. The Board has considered other theories. While apneas are lay observable, the Veteran has not stated that he witnessed apneas in service and does not claim apneas started in service. Service records are negative for sleep apnea or related issues. The record does not document any findings of symptoms associated with sleep apnea until many years after service in 2012, nearly a decade after service. The credible and probative evidence establishes that the Veteran's sleep apnea was not manifest during service and that it is not due to service, to include as secondary to a service-connected disease or injury. In light of the probative VA opinion, the Board concludes that the preponderance of the evidence is against the claim. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Yoffe, 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.