Citation Nr: 21068710 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 10-23 899 DATE: November 12, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected disabilities, is denied. FINDING OF FACT The Veteran's OSA was not present during service or for many years thereafter and is not shown to be causally or etiologically related to service, or a service connected disability. CONCLUSION OF LAW The criteria for service connection for sleep apnea, to include as secondary to service-connected disabilities, are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1981 to September 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in February 2016. A transcript of the proceeding is of record. In a February 2019 decision, the Board denied the appeal. The Veteran appealed the Board's decision to the Court of Appeals for Veterans Claims (Court). A December 2019 order vacated the Board's decision and adopted a Joint Motion for Partial Remand (JMPR) for reconsideration of the Veteran's claim of service connection for OSA, not disturbing the other issues adjudicated by the Board. The Board remanded the matter in accordance with the JMPR in April 2020, February 2021, and July 2021. The requested development having been completed; the matter has returned to the Board. Entitlement to service connection for sleep apnea The Veteran contends that she has OSA due to her service-connected disabilities and the medications prescribed to treat those disabilities, or in the alternative, due to the weight gain she contends has been caused by her service-connected disorders and medications prescribed for those disabilities. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury, or that service-connected disease or injury has aggravated the nonservice-connected disability for which service connection is sought. 38 C.F.R. § 3.310. Obesity may act as an "intermediate step" to establish proximate causation 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); VAOPGCPREC 1-2017 at 7-9. To establish a service-connected disability proximately caused a current disability through obesity, the adjudicator must determine: (1) whether the service-connected disability caused the veteran to become obese; (2) if so, whether the obesity as a result of the service-connected disability was a substantial factor in causing the current disability; and (3) whether the current disability would not have occurred but for obesity caused by the service-connected disability. Id. at 9-10. If all of the above questions are answered in the affirmative, then the current disability may be service connected on a secondary basis. Id. at 10. The Board concludes that, while the Veteran has a current diagnosis of sleep apnea, service connection for OSA is not warranted. Initially, the record does not show that OSA began in service as there are no sleep/snoring related complaints despite numerous occasions when seen by medical professionals the last years of her active duty. Rather, as per the April 2008 Sleep Center report, the Veteran's obstructive sleep apnea was diagnosed approximately 20 years after military service. Furthermore, sleep apnea is not a presumptive disorder pursuant to 38 C.F.R. § 3.309. As such, service connection for sleep apnea on a direct or presumptive basis is not warranted. Regarding the Veteran's claim that her sleep apnea is secondary to her service-connected disabilities, the greater weight of the evidence is against the claim. The Veteran was afforded a VA examination in September 2008. The VA examiner stated that the Veteran's sleep apnea did not have its onset in service, explaining that it was only identified as mild when diagnosed 20 years after service, and that it was unlikely related to her sinusitis and rhinitis. In this regard, the examiner set out the risks for OSA, as found in a medical literature review. This revealed that nasal congestion was only a potential risk factor, rather than a definite one. In November 2008, a physician assistant provided a cursory paragraph that identifies the Veteran's risk factors for the recent sleep apnea diagnosis that includes pain medications and her weight, with the comment that it was difficult for her to lose weight "because of her decreased mobility with her chronic low back pain and her total knee replacement." However, these comments were not placed in any sort of meaningful chronologic context, nor was this an affirmative statement that these caused the claimed disability. A July 2014 VA examiner specifically opined that the Veteran's sleep apnea was not directly or proximately caused by her musculoskeletal problems or any service-connected illness. The VA examiner noted the contentions of the Veteran and her partner that there was snoring associated with the use of muscle relaxants and antidepressants. The examiner explained that while some of these medications "might" cause snoring through airway muscle relaxation, it is not necessarily indicative of sleep apnea. Specifically, this type of snoring through sedation would result in "central apneic episodes," which is not the type of apnea identified during the Veteran's 2010 sleep study which demonstrated "very obstructive apneic episodes and not central episodes." However, the Veteran's March 2008 sleep study showed two central episodes, while a 2010 sleep study showed one central episodes. As the opinion was based in part on an inaccurate factual premise, the Board remanded the matter in accordance with the December 2019 JMPR for an opinion that considered the central apneic episodes. The June 2020 examiner opined that each of the Veteran's service-connected disabilities did not cause or aggravate her sleep apnea. The examiner noted that while the Veteran reported snoring in service, snoring is not diagnostic of obstructive sleep apnea, to include gasping, trouble sleeping, or insomnia. The examiner noted that definite risk factors for sleep apnea include obesity, and that obesity is the best documented risk factor for sleep apnea. However, the examiner did not opine as to whether the Veteran's service-connected disabilities caused the Veteran to become obese, whether the obesity was a factor in causing her sleep apnea, and if so, whether sleep apnea would not have occurred but for obesity caused or aggravated by the Veteran's service-connected disabilities. The examiner noted that muscle relaxants do not cause sleep apnea but did not discuss whether muscle relaxants could aggravate sleep apnea. Finally, the examiner did not discuss the Veteran's central apneic episodes. As such, the Board again remanded the matter. The March 2021 examiner opined that the Veteran's sleep apnea was less likely than not caused or aggravated by her service-connected conditions, to include medications prescribed to treat her conditions, as there was no support in the medical literature for those medications causing or aggravating sleep apnea. The examiner further opined that the Veteran's service-connected conditions had not caused her to become obese and that obesity was not the only pathophysiological feature involved with sleep apnea. The examiner noted that while musculoskeletal conditions like the Veteran's knee replacement limited mobility, it was not necessarily a prerequisite for weight gain. The examiner added that the Veteran's conditions did not preclude all forms of exercise or weight loss. However, the examiner did not discuss the Veteran's central apneic episodes. As such, another opinion was requested that addressed the Veteran's central apneic episodes. In an August 2021 addendum opinion, the examiner noted that the Veteran underwent a sleep study in April 2008, and was diagnosed with mild OSA and started on continuous positive airway pressure (CPAP) of 7.0 cm. The Veteran thereafter underwent a reevaluation and titration in September 2010 with an AHI of 19 and CPAP settings were adjusted to 10 cm. The Veteran was noted to have had one central apnea across the course of the study, which the examiner opined was inconsequential and would not contribute to the Veteran's OSA. The examiner noted that the same index parameter of greater than five applies whether the apneas are central or obstructive, which would yield a central apnea index of .2 for five hours of sleep, which the examiner stated was of no clinical significance. Thus, while the July 2014 examiner opined that if the Veteran's medications affected her OSA, it would have caused central episodes, of which the Veteran had only one on the most recent sleep study, the August 2021 examiner opined that even if the Veteran had central apneas, they would be inconsequential and not have contributed to the Veteran's OSA. Taken together, the several VA opinions of record establish that the Veteran's OSA is not at least as likely as not related to an in-service injury or disease, including as due to obesity caused by service-connected disabilities or the medications prescribed to treat those disabilities. The June 2020 VA examiner opined that the Veteran's service-connected back and knee disabilities, including the medications prescribed to treat them, had not caused or aggravated the Veteran's OSA, while the March 2021 VA examiner opined that the Veteran's service-connected disabilities had not caused the Veteran to become obese. Further, the August 2021 examiner opined that the central apnea episodes had no clinical significance and had not contributed to the Veteran's OSA. The combined rationale was that the Veteran's service-connected disabilities and medications prescribed to treat them have not caused or aggravated the Veteran's OSA, nor have the Veteran's disabilities caused her to become obese such that the OSA would not have occurred but for the Veteran's obesity. The examiners' combined opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes her OSA is proximately due to or aggravated beyond its natural progression by her service-connected disabilities. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The Veteran's fellow servicemember noted that the Veteran's snoring began after the injury and appeared to be exacerbated by the prescribed medications; however, he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran and her fellow servicemember in this case because the record does not show they have the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the June 2020, March 2021, and August 2021 VA addendum opinions. As such, service connection for obstructive sleep apnea is denied. (Continued on the next page) The Board has duly considered the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim, so that doctrine is not applicable. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Geer, Vanessa V. 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.