Citation Nr: 21068479 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 17-41 060 DATE: November 10, 2021 ORDER Service connection for obstructive sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD), is denied. FINDING OF FACT The Veteran's obstructive sleep apnea did not have its onset during service, and was not otherwise due to disease or injury in service; and, the obstructive sleep apnea is not aggravated beyond natural progression by the Veteran's service-connected PTSD. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea, to include as secondary to service-connected PTSD, are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.101(2), 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1979 to October 1983, with additional periods of active duty for training, in the Army Reserve, from August 2006 until May 2018. While in the Army Reserve, the Veteran had periods of active duty for training from June 6, 2009 to June 18, 2009, and from August 16, 2010 to August 27, 2010. This case is before the Board of Veterans' Appeals (Board) on appeal from a June 2017 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to service connection for obstructive sleep apnea. The Veteran's notice of disagreement (NOD) was received in July 2017. The RO issued the statement of the case (SOC) in August 2018, and the Veteran's VA Form 9, substantive appeal was received in August 2018. In June 2020, the Board remanded the case for further adjudicative action and development. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). The term "active military, naval, or air service" includes: (1) active duty; (2) any period of active duty for training purposes (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty; and (3) any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). The term "active duty for training" means full-time duty in the Armed Forces performed by Reserves for training purposes. 38 § U.S.C. 101(22). The term "Reserve" means a member of a reserve component of one of the Armed Forces. 38 § U.S.C. 101(26). The term "reserve component" includes, with respect to the Armed Forces, the Army Reserve. 38 § U.S.C. 101(27). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service 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 established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 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). Establishing a service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Aggravation of a nonservice-connected disability under 38 C.F.R. § 3.310(b) means any increase in severity of a nonservice-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. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected PTSD The Veteran contends that his diagnosed obstructive sleep apnea is related to disease or injury in service, to include as secondary to or as aggravated by his service-connected PTSD. Service treatment records (STRs), including a September 1983 separation Report of Medical Examination, are silent for any diagnosis, treatment, complaints, or symptomatology of/relating to a sleep disorder. An April 2006 Report of Medical Examination is silent for any indications of a sleep disorder, and an April 2006 Report of Medical History shows that the Veteran denied any history of "frequent trouble sleeping." That examination report also notes that the Veteran's weight was up to 215 and that he was 69 to 70 inches tall. An April 2008 VA primary care note shows that the Veteran reported getting eight hours of sleep per night, and denied any snoring. A March 2010 VA primary care note shows that the Veteran's BMI was 30.5, which qualified as obese. A February 2015 VA anesthesiology pre-operative note indicates "NO" history of sleep apnea, based on the Veteran's history and a review of symptoms. A February 2015 VA history and physical note states, "no history of obstructive sleep apnea," and the Veteran denied any prior diagnosis of obstructive sleep apnea on a May 2016 Functional Capacity Certificate Form 507. The Veteran was seen for a VA sleep medicine consult in December 2016, with a reported history of snoring and witnessed apneas. The Veteran reported that he experienced nightmares and fighting in his sleep for the past 4-5 years, occurring 2-3 times per week. He complained of "excessive daytime sleepiness, sleepiness affecting work or social life, snoring, stoppage of breathing during sleep, morning headaches, legs disturbing sleep at night, restless legs, chronic pain affecting sleep, acting out dream content." The Veteran was assessed with a "high pre-test probability of OSA" based on a STOP BANG test (a test used to help diagnose obstructive sleep apnea). The Veteran underwent a polysomnography at a VA facility in December 2016. The polysomnography revealed "many (moderate) apneas, hypopneas, and respiratory-event related arousals, accompanied by mild (1/5) snoring." He was assessed with moderate obstructive sleep apnea. From March 2016 to March 2018, the Veteran's weight fluctuated between 202 pounds (in early 2016) and 212 pounds (in March 2018). See, e.g., March 2016 VA primary care note. From November 2018 to February 2020, the Veteran's weight fluctuated between 198 pounds and 205 pounds. In a January 2017 letter, the Veteran's wife described how the Veteran has snoring, breathing, and movement problems while sleeping. She reported that the symptoms make it difficult for the Veteran to breathe, make him uncomfortable, and cause nightmares. She did not state when she first noticed such symptoms. An April 2017 private homecare report shows that the Veteran received a continuous positive airway pressure (CPAP) machine in April 2017. In an August 2017 letter, a private NP, J.L., noted the Veteran's wife's apparent belief of that the Veteran exhibited "signs of sleep apnea while he was on Active Duty," such as snoring and gurgling. In August 2017, the Veteran reported having nightmares once per week, requiring medication. See August 2017 Walter Reed National Military Medical Center adult behavioral health clinic note. March 2018 and May 2019 VA primary care notes shows that the Veteran was seen in the sleep clinic related to the CPAP machine he uses to control his "mild OSA." The Veteran was diagnosed with PTSD at an August 2018 VA initial PTSD examination. The examiner noted that "[s]leep apnea may contribute to mood disturbance and fatigue." In an August 2019 letter, the Veteran reported that he "has not been at total peace during his sleep" since he experienced psychiatric trauma in service in 1981. He reported that using his CPAP machine helps "reduce my already nightmare-plagued sleep with vivid dream enactment behavior." In a September 2019 letter, a friend of the Veteran, C.P., reported that he observed the Veteran's sleep-pattern history while serving with him, on reserve duty, from January 2011 to May 2018. C.P. reported that the Veteran was a restless sleeper who slept for approximately four hours per night. In a September 2019 Statement in Support of Claim, the Veteran reported "very aggressive and violent mood swings and sleep patterns which do affect the usage of my CPAP machine. I am unable at time[s] to maintain the wearing of my mask due to dreams and nightmares that I act out during my various realms of sleep." He reported symptoms of insomnia and irritability. In September 2019, the private NP, J.L., reported that she is the "sleep provider" for the Veteran. She noted that he has mild sleep apnea. She noted that "according to medical research, 69% of Iraq and Afghanistan Veteran who have PTSD also have OSA. Vets who had PTSD have difficulty adjusting to CPAP. There are no military records to review at this time." The Veteran had a VA sleep apnea examination in September 2019. The examiner reviewed the Veteran's claims file, and conducted a telephone interview with the Veteran. The examiner noted a diagnosis of obstructive sleep apnea with an onset of June 2017, based on a June 2017 VA sleep medicine note. [Note: while the VA sleep medicine note was prepared in June 2017, the polysomnography was conducted in December 2016]. The examiner noted that the Veteran's obstructive sleep apnea had progressed since June 2017 based on reported current symptoms including "difficulty tolerating CPAP; only sleeping 2-3 hours per night with frequent wake-ups and snoring." Notably, the examiner did not provide any opinions concerning whether the Veteran's obstructive sleep apnea was related to service, to include as secondary to or aggravated by any service-connected disability. A February 2020 VA primary care note shows that the Veteran was not considered obese, based on a BMI below 30. Another February 2020 VA primary care note states "[Veteran] is exercising regularly, his weight has been stable;" and, he "has maintained his weight loss." In August 2020, the September 2019 VA examiner conducted a record review. The examiner was asked to opine was to whether it was at least as likely as not that the Veteran's obstructive sleep apnea was (i) related to service, to include as caused by or incurred in a period of active duty; (ii) proximately due to or the result of the Veteran's service-connected PTSD; or (iii) aggravated beyond natural progression by service-connected PTSD. In so opining, the examiner was directed to reconcile any opinion provided with J.L.'s September 2019 letter that provided data on the incidence of PTSD and sleep apnea in Iraqi and Afghanistan veterans. The examiner indicated that the obstructive sleep apnea was at least as likely as not incurred in or caused by service. The rationale was as follows: Buddy Statements from C.P. dated 7/19/17 and 9/20/19 attest to snoring, nocturnal awakening and daytime fatigue during service between 11/1979 and 10/1983 [emphasis added]. First subsequent sleep study 6/12/17 demonstrated presence of sleep apnea; consequently, current condition is likely to represent a continuation of the same disease process. The examiner opined that the obstructive sleep apnea was less likely than not proximately due to or the result of service-connected PTSD; the rationale was as follows: PTSD is not an established primary etiology of sleep apnea in the medical literature; the Veteran's sleep apnea is more likely secondary to his obesity (BMI>30) which is well-established to cause sleep apnea in the medical literature. The examiner was unable to establish a baseline level of severity of the obstructive sleep apnea, because the "medical evidence is not sufficient to support a determination of a baseline level of severity." Nonetheless, the examiner opined that the obstructive sleep apnea was less likely than not aggravated beyond natural progression by PTSD; the rationale was as follows: 6/12/17 Sleep Study diagnoses mild sleep apnea; 9/18/19 Sleep Apnea DBQ demonstrates Veteran sleeping 2-3 hours per night on CPAP with periodic wake-ups and daytime fatigue; this falls within the projected natural history of the condition and does not represent aggravation (beyond natural progression) The examiner provided an addendum opinion in August 2020. The examiner was advised that C.P. did not serve with the Veteran during his period of active duty, from November 1979 to October 1983; rather, C.P. served with the Veteran during a period of reserve duty from January 2011 to May 2018. Based on that information, the examiner clarified that: Buddy Statements from C.P. dated 7/19/17 and 9/20/19 attest to snoring, nocturnal awakening and daytime fatigue during service, however, [C.P.] only served with the Veteran during a time in which he was on Reserves. There is no evidence of related complaints occurring during active duty. Therefore the claimed sleep apnea was less likely than not (less than 50 percent probability) incurred in or caused by the in-service injury, event or disease during service from November 1979 to October 1983 or is otherwise related to any aspect of the veteran's service. In a May 2021 Statement in Support of Claim, the Veteran reported that his CPAP mask loosens during sleep, and because he does not awake when the mask becomes loose, his sleep is disturbed. As a result, he has felt "less motivated to exercise which has caused a significant weight gain." He reported mood swings, which he presumptively believes are caused by the obstructive sleep apnea and/or PTSD, as well as difficulty with his attention span. He reported that his wife hears him choking at times, as a result of his CPAP mask becoming undone. A May 2021 letter from a private psychiatrist, Dr. B.S., M.D., reflects that the Veteran was seen at the office of Dr. B.S. for "Chronic Sleep Disorder." Dr. B.S. stated: The Veteran has a psychiatric diagnosis of posttraumatic stress disorder, chronic. [The Veteran] struggles with chronic sleep disorders and [he] is recommended to undergo sleep studies to establish if there is a relationship between his [PTSD] and chronic sleep disorder. Turning to whether the elements of the service connection claim are met, the Veteran has a current disability of obstructive sleep apnea, as set out above. Thus, the dispositive issue in this case is whether the Veteran's obstructive sleep apnea had its onset during active duty; or, whether it is otherwise related to any in-service injury or disease, to include as secondary to the service-connected PTSD. The Veteran has not argued, and the evidence does not show, that the obstructive sleep apnea had an onset during his active duty service between November 1979 and October 1983. Likewise, there is no indication that the Veteran's obstructive sleep apnea is due to disease or injury during a period of ACDUTRA. Rather, the obstructive sleep apnea was first diagnosed in December 2016, and the earliest asserted onset of symptoms that may be related to the Veteran's obstructive sleep apnea was sometime after January 2011, per C.P.'s report of the Veteran having "restless sleep" while they served on reserve duty. Additionally, the Veteran reported in December 2016 that his "nightmares and fighting in his sleep" began 4-5 years prior, suggesting an onset during the Veteran's reserve service. Importantly, such reserve service does not qualify as active service for purposes of 38 U.S.C. § 101(2), unless the Veteran was injured (or contracted a disease) during such service. While service connection may be warranted for a disease or injury incurred in a period of ACDUTRA, there is no evidence in the file to support a finding that the Veteran's obstructive sleep apnea is due to any disease or injury during a period of ACDUTRA, and the Veteran has not asserted as much. Further, on the issue of whether the Veteran's obstructive sleep apnea is related to a term of active service, the record contains the August 2020 VA examiner's opinion and subsequent clarifying addendum opinion. When read together, the opinions make clear the examiner's finding that the obstructive sleep apnea was less likely than not caused by or incurred in service. Such finding was made after an in-person examination of the Veteran (in September 2019), and reflects consideration of the relevant evidence, including the STRs, post-service VA and private treatment records, as well as the lay statements provided by the Veteran and otherwise. Accordingly, the opinion carries significant probative value. When viewed in such context, the examiner's conclusion is clearly unequivocal and weighs against the claim. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In light of the foregoing, the weight of the probative evidence is against finding that the Veteran's obstructive sleep apnea had an onset during a period of active service, to include ACDUTRA, or is otherwise related to a period of qualifying active service. Concerning whether the obstructive sleep apnea was caused by, or aggravated (increased in severity beyond natural progression) by the Veteran's service-connected PTSD, the record contains (i) the August 2020 VA examiner's opinion; (ii) the September 2019 letter from the private NP, J.L.; (iii) the Veteran's September 2019 and May 2021 reports of difficulty with sleeping and with his CPAP mask, causing mood swings and weight gain; and (iv) the May 2021 letter from Dr. B.S. The August 2020 VA examiner's opinionthat the obstructive sleep apnea was less likely than not incurred in or caused by service caused by or aggravated beyond natural progression by the PTSDwas formed after in-person interview, a file review, and review of medical literature. The examiner considered the lay statements in the record, and the opinion was formed after comparing the results of the Veteran's prior sleep tests/VA examinations. The opinion is clearly worded such that the examiner's finding is unequivocal. Additionally, the examiner identified a likely, alternate cause of the obstructive sleep apneathe Veteran's obesity (based on a BMI of greater than 30). For those reasons, that opinion carries significant probative weight. J.L., N.P. discussed the prevalence of obstructive sleep apnea in Veterans suffering from PTSD. However, J.L., N.P. did not address that the Veteran's weight in the opinion, and, moreover, J.L. merely noted a coincidence of both PTSD and sleep apnea in Iraqi and Afghanistan veterans. That alone does not provide a basis to find that the Veteran's particular circumstances warrant a finding of secondary service connection or aggravation, particularly given that the Veteran's records do not show that he had any active duty deployments to the middle east. The Veteran was a peacetime veteran during active duty, and as noted above. Obesity, as noted in the August 2020 VA opinion, is a central risk factor in the development of obstructive sleep apnea. Additionally, J.L. noted that the obstructive sleep apnea was mild, and did not point to any evidence tending to show that the Veteran's obstructive sleep apnea had in fact worsened at all since first diagnosed. Lastly, J.L.'s argument simply recited the results of an unnamed study, and provided no discussion as to why the purported findings of such study have any bearing on whether the Veteran's unique obstructive sleep apnea disability picture is related to his PTSD. While medical articles or treatises can provide important support when combined with an opinion of a medical professional, such medical article or treatise evidence must nevertheless discuss generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222 (1999); Wallin v. West, 11 Vet. App. 509 (1998); Sacks v. West, 11 Vet. App. 314 (1998). Thus, the letter carries low probative weight concerning whether the Veteran's obstructive sleep apnea was caused by, or aggravated beyond natural progression by, his service-connected PTSD. Next, the Veteran reported on several occasions that his PTSD causes difficulty keeping the CPAP mask on, and as so, worsens his obstructive sleep apnea. The Veteran is certainly competent to report such observable symptoms, and there is no reason to question his credibility in such reports. However, while the Veteran reports, in essence, that his sleep apnea treatment is not as effective because of his PTSD, the Veteran is not shown to have the type of medical expertise to find that the underlying obstructive sleep apnea disorder has increased in severity beyond natural progression as a result of his PTSD. Such a finding requires medical expertise and diagnostic testing not capable of lay observation, and the Veteran is not shown to possess the requisite medical knowledge necessary to determine whether the underlying disease process has worsened as a result of the PTSD. In this case, the September 2019 examiner reviewed the Veteran's polysomnography results and reported symptomatology, from which he determined that the obstructive sleep apnea was not aggravated beyond natural progression by PTSD. For the reasons set out above, that opinion thus carries greater probative weight, when compared to the Veteran's lay reports of difficulty keeping his CPAP mask on during sleep, on the issue of whether the Veteran's obstructive sleep apnea was aggravated, beyond natural progression, by PTSD. Finally, the letter from Dr. B.S. does not contain an opinion regarding a link between obstructive sleep apnea and PTSD. Moreover, the letter does not contain definitive language from which to draw an inference concerning a link between obstructive sleep apnea and PTSD. Simply put, the letter serves the sole purpose of advising the Veteran to undergo further testing, and does not go as far to implicate a link between obstructive sleep apnea and PTSD. Thus, the letter carries low probative weight concerning whether obstructive sleep apnea was caused by or aggravated by service-connected PTSD. In light of the above reasons, the weight of the probative evidence is against finding that the Veteran's obstructive sleep apnea was caused by, or aggravated beyond natural progression by, his service-connected PTSD. Finally, the Veteran suggested that, as a result of his PTSD, he is no longer motivated to exercise and has gained significant weight. See, e.g., May 2021 Statement in Support of Claim. As obesity is not considered a disability for VA purposes, service connection may not be granted for another disability rating proximately caused by obesity. Nevertheless, obesity may be an "intermediate step" between a service-connected disability and a current disability that may be connected on a secondary basis. In order to meet this criterion, the Veteran must demonstrate that a previously service-connected disability caused the Veteran to become obese; that obesity was a substantial factor in causing secondary disability; and the secondary disability would only have occurred but for the obesity. VAOPGCPREC 1-2017 (January 6, 2017). However, the VA treatment records show that the Veteran was obese as early as March 2010. PTSD was first diagnosed in August 2018. Since March 2016before he was first diagnosed with obstructive sleep apneathe Veteran's weight has fluctuated between approximately 198 pounds and 212 pounds, with a BMI hovering near 30. In fact, he weighed less in February 2020 than he did in March 2016; and, reported in February 2020 that he "exercised regularly." In essence, the probative, medical evidence reflects that the Veteran has not undergone a "significant weight gain" since he was first diagnosed with obstructive sleep apnea, or for that matter, PTSD. Moreover, the evidence certainly does not show that there was any instance of weight gain, including any periods of transitory weight gain, which were attributable to service-connected PTSD. Thus, the Veteran's assertion of "significant weight gain" due to PTSD, which in turn has worsened his obstructive sleep apnea, is not consistent with the medical evidence. As so, the weight of the evidence does not support a finding that the Veteran's obstructive sleep apnea was worsened by obesity, which in turn was attributable to service-connected PTSD. For those reasons, and in consideration that the Veteran's obesity began significantly before he was first diagnosed with PTSD, and there is no basis upon which to find that his obesity worsened at any point after his PTSD was diagnosed, service connection for obstructive sleep apnea, as secondary to PTSD by way of the "intermediate step" of obesity, is not warranted, and an additional opinion addressing that a link is unnecessary. In light of the foregoing, the weight of the evidence is against finding that the Veteran's obstructive sleep apnea is related to service, to include on a direct basis or as secondary to service-connected PTSD. The claim is denied. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. KAYS HUKILL 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.