Citation Nr: 21069696 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 16-39 703 DATE: November 19, 2021 ORDER Service connection for obstructive sleep apnea (OSA) is denied. FINDING OF FACT The most probative medical evidence of record weighs against finding that the Veteran's OSA is proximately due to or the result of a service-connected disability. CONCLUSION OF LAW The criteria for service connection for OSA have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1965 to November 1968. This matter came before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Unfortunately, the Veteran died in September 2020. The appellant is his son and has been recognized as a valid substitute claimant. In November 2019, the Board denied service connection for major depressive disorder and OSA. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In November 2020, the Court granted a Joint Motion for Remand (JMR), vacating the November 2019 Board decision and remanding the matter for further development and adjudication consistent with the JMR. The issues were remanded by the Board in May 2021. In a September 2021 rating decision, service connection for major depressive disorder was granted. This constitutes a full grant of the benefit sought on appeal. Service Connection Service connection may be granted for a disability due to a disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304. 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. 38C.F.R. § 3.303. To substantiate a claim of service connection there must be evidence of: (1) a present disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Under 38 C.F.R. § 3.310(a), service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. Establishing 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) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Veteran contends that his OSA is proximately due or the result of his service-connected diabetes mellitus, type II. It is noted that during his lifetime the Veteran had not raised, and the record does not reasonably raise, entitlement to direct service connection. Per his October 2015 Notice of Disagreement and August 2016 Substantive Appeal, the Veteran asserted service connection on a secondary basis and submitted treatise materials in support of a secondary relationship. Thus, the Board's adjudication will consider only entitlement to service connection on a secondary basis. Notwithstanding the Veteran's assertions made during his lifetime, service treatment records are negative for any complaints or diagnoses related to OSA, and there is otherwise no evidence which supports a direct relationship to service. In support of his claim, the Veteran submitted a Web MD article that posits a "multidirectional" link between OSA and diabetes mellitus. The article notes the prevalence of OSA diagnoses in individuals suffering from diabetes. The Veteran was afforded a C&P examination with respect to his OSA diagnosis in July 2016. The examiner opined that it was less likely than not that the Veteran's OSA was due to or the result of the Veteran's service-connected diabetes mellitus, type II. The examiner explained that the "physical examination was evident for an overweight Veteran with a swallow oropharyngeal space and a large neck circumference for his build which are known risk factors for OSA." The examiner also noted that a review of medical literature revealed little evidence for an established link between diabetes and OSA. In August 2021, a C&P examiner reviewed the claims folder and proffered a negative etiological opinion regarding aggravation. Specifically, the examiner noted a diagnosis of OSA around the year 2000 with an underlying diabetes and a very long history of severe depression requiring multiple medication trials as well as ECT in the early 2000 range. The examiner noted that it is clear that he had a degree of hypersomnolence at times and this was noted in his symptoms section of his medical records. The examiner explained that there is a higher prevalence of obstructive sleep apnea in diabetics. In turn there are theories that obstructive sleep apnea in and of itself can increase insulin resistance and lead to diabetes. The difficult part is determining which would be the main culprit. While diabetes is associated with obesity, this particular Veteran was only mildly overweight at 5' 8" with a weight mostly ranging between 170 and 190. The examiner explained that hypoxemia occurs periodically with OSA and generally has been linked with impaired glucose metabolism and studies of normal men at high altitude and experimental sleep deprivation in healthy subjects appears to be associated with abnormal glucose tolerance (a precursor to diabetes). Other physiologic findings support a link between obstructive sleep apnea syndrome and insulin resistance. Sleep disordered breathing is associated with increased sympathetic nerve activity and catecholamine release which in turn may promote hyperinsulinemia by stimulating glycogenolysis and gluconeogenesis. Though an association between the two conditions is clearly seen, the question is causation. Does the diabetes cause or aggravate the obstructive sleep apnea, or does the obstructive sleep apnea cause or aggravate the diabetes. At this point the question is still being debated in scientific journals. However, the more definitive studies appear to favor the theory that the sleep deprivation, relative hypoxia and increased sympathetic stimulation associated with obstructive sleep apnea syndrome is more likely the culprit in stimulating the onset of diabetes or worsening diabetes already present. In Aronsohn's 2009 study, "Impact of untreated obstructive sleep apnea on glucose control and type II diabetics," an increase in hemoglobin A1c suggesting poor glucose control was seen with increasing obstructive sleep apnea severity. This study controlled for age, sex, race, body mass index, number of diabetic medications, level of exercise, years of diabetes, and total sleep time. This study indicated that obstructive sleep apnea is highly prevalent in patients with type 2 diabetes, and demonstrated a clear, graded, inverse relationship between obstructive sleep apnea severity and glucose control in patients with type 2 diabetes, after controlling for the degree of adiposity and multiple other potential cofactors. The presence of mild/moderate or severe obstructive sleep apnea increased the mean adjusted hemoglobin A1c values by 1.49, 1.93 and 3.69% respectively. While this again shows a connection between obstructive sleep apnea and type 2 diabetes, it does not mean that the diabetic level of control impacts on the obstructive sleep apnea syndrome. It is more likely that the elevated sympathetic response and elevated cortisol levels seen in obstructive sleep apnea (which is likely triggered by intermittent hypoxia and significant sleep disturbance), worsens diabetic control. The authors specifically note that "...our study was not designed to examine the mechanisms linking obstructive sleep apnea and glucose control and type 2 diabetes. Although it remains possible that hyperglycemia may promote sleep disturbances, the current evidence supports the hypothesis that obstructive sleep apnea, and its inherent characteristics such as intermittent hypoxia elevated sympathetic nervous activity, sleep fragmentation and low amounts of slow-wave sleep and cumulative sleep loss has adverse effects on glucose control." As per Aronsohn, "Multiple prospective epidemiologic studies have indicated that short sleep and/or poor sleep quality as is typical of obstructive sleep apnea is associated with an increased incidence of diabetes over time. In a recent prospective population-based study, the presence of moderate to severe obstructive sleep apnea was found to be a significant risk factor for incident diabetes during a 4-year follow-up period." These studies in particular support the role of obstructive sleep apnea causing or worsening diabetes. The examiner could identify no strong literature supporting the theory that diabetes in and of itself caused or aggravated obstructive sleep apnea. Thus, it is less likely than not that this Veteran's obstructive sleep apnea was aggravated beyond its normal progression by his service-connected diabetes. The Board has considered the evidence submitted by the Veteran which suggests a potential link between diabetes and OSA. However, the Board finds that the July 2016 and August 2021 examiners' opinions are the most probative evidence of record. As detailed, the July 2016 examiner had the benefit of an in-person examination and review of the claims folder, and the August 2021 examiner had the benefit of review of the claims folder. Thus, such opinions are assigned more probative value than credible medical literature that pertains to the general population. Moreover, the examiners demonstrated a familiarity with the Veteran's record, used the correct standard of review, and included adequate rationales to support their conclusions. Further, the examiners' findings are consistent with the Veteran's medical history. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444 (2000). To the extent that the Veteran has asserted that his OSA is proximately due or the result of his service-connected diabetes mellitus, type II, the Board finds that he is not qualified ("competent") to offer an opinion as to the cause of this disability because this determination requires a level of medical expertise which the Veteran, as a layperson, does not possess. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007) (holding that lay persons can be competent to diagnose and identify the cause of simple conditions such as a broken leg but not complex medical conditions such as cancer). Accordingly, in the absence of competent probative medical evidence relating the Veteran's OSA to his diabetes, or otherwise to his active service or other service-connected disability, the claim must be denied. (Continued on the next page) In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Marissa Caylor Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.W. Kreindler, 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.