Citation Nr: 21070236 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 13-03 252 DATE: November 23, 2021 ORDER Entitlement to service connection for sleep apnea syndrome (OSA) to include as secondary to service-connected hypertension (HTN), coronary artery disease (CAD), and/or major depressive disorder (MDD), is denied. FINDING OF FACT The evidence fails to establish that the Veteran's current OSA disability was incurred in, or is otherwise etiologically related to, the Veteran's active-duty military service; the disability was also not incurred or aggravated as secondary to her service connected HTN, CAD, or MDD, to include causing obesity that could serve as an "intermediate step" for establishing service connection on a secondary basis. CONCLUSION OF LAW The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1984 to August 1990. This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. This matter was previously before the Board in June 2018, August 2019, August 2020, February 2021, and most recently in July 2021 at which time it was remanded for additional development to include obtaining an addendum medical opinion regarding the etiology of the Veteran's OSA. The examiner was asked to address the following three questions. (1) If the Veteran's HTN, CAD and/or MDD caused the Veteran to become obese/gain weight or in the alternative aggravated the Veteran's obesity/weight gain, to include as due to pain and functional impairment. If yes, (2) was the obesity/weight gain because of the Veteran's HTN, CAD, and/or MDD a substantial factor in causing the Veteran's sleep apnea? Finally, (3) would the Veteran's sleep apnea have not occurred but for the obesity/weight gain caused or aggravated by the HTN, CAD, and/or MDD? The record indicates that the RO requested and obtained an August 2021 addendum medical opinion. The Board notes that, to the full extent possible, VA complied with all prior remand instruction requests, and there exist no deficiencies in VA's duties to notify and assist in that regard. See Stegall v. West, 11 Vet. App. 268 (1998); but see D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). The matter has returned to the Board for further appellate review. As will be highlighted below, a thorough review of the Veteran's claim file shows some service treatment records (STRs) are unavailable. As such, the Board notes that VA has a heightened duty to assist, as well as an obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The following analysis has been undertaken with this heightened duty in mind. However, the Board observes that the case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). The Veteran has asserted multiple theories of service connection for her OSA including: direct service connection (see December 2014 VA 21-526EZ), secondary connection to non-service-connected posttraumatic stress disorder (PTSD) (see August 2015 VA 21-526EZ), secondary connection to her service connected HTN or CAD (see September 2016 VA Form 9 Formal Appeal), secondary connection to her service connected MDD (see June 2019 Appellate Brief), and secondary to weight gain caused by her service connected HTN, CAD and MDD (see December 2020 Appellant Brief). Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active service. 38 U.S.C. §§ 1110, 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In addition, secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. To prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all the evidence is assembled, VA must determine whether it supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board acknowledges the Veteran has a current diagnosis of OSA. See March 2015 and September 2020 VA sleep apnea examinations confirming a diagnosis from 2014. Thus, the only questions for the Board are whether the Veteran's OSA began during service or is at least as likely as not related to an in-service injury, event, or disease, or in the alternative, if the Veteran's OSA was caused or aggravated by her service connected HTN, CAD, and/or MDD, to include obesity that might be caused by these conditions or any treatment. The Veteran's STRs include an April 1984 Report of Medical Examination (RME) for enlistment that reflects a normal examination and is silent for OSA. An October 1987 Medical Evaluation Board (MEB) Proceeding report noted the Veteran had diagnoses of right knee patellofemoral joint pain syndrome; chronic and intermittent abdominal pain, probably secondary to adhesions from multiple abdominal surgery; removal of uterus and bilateral ovaries; and healed abdomen scars, non-painful and non-disfiguring. A November 1987 Physical Evaluation Board (PEB) Memo reflects a determination that the Veteran was physically fit for service. Following a thorough review of the claims file, the Board is unable to identify a separation examination. However, the Board observes that the RO requested the Veteran's complete STRs and entire personnel file in August 2015. A September 2015 response from the National Personnel Records Center (NPRC) indicated that all available records were already provided to VA. Therefore, it appears that the Veteran's separation examination report, if it exists, is unavailable. Post-service treatment records include a March 2014 VA otolaryngology consult that noted the Veteran reported gaining 65 pounds in one year, having trouble sleeping because she chokes and coughs at night, feels like she cannot catch her breath, and sleeps during the day. The same record noted no sleep study. An October 2014 VA psychiatry record noted the Veteran reported only getting two hours of sleep per night. A December 2014 VA sleep study report noted moderate OSA and recommended the use of a continuous positive airway pressure (CPAP) machine. A September 2015 mental health record noted the Veteran reported sleep trouble. A September 2015 VA speech pathology record noted the Veteran reported choking during sleep and waking up during the night to clear her throat. A June 2016 mental health medication management record noted prescription sleep medication. The same record indicated the Veteran reported a history of OSA with use of a CPAP machine. Undated VA treatment records also indicate a CPAP was ordered for the Veteran in July 2016. The Board also notes post-service treatment records include numerous vitals results showing that the Veteran gained more than 70 pounds, and her body mass index increased to approximately 37 percent since separation from active service. The claims file includes a March 2015 VA sleep apnea examination. The examiner confirmed a diagnosis of OSA from 2014. The Veteran reported a history of snoring and worsening of her symptoms over the past three years. The examiner opined that it was is less likely than not that the Veteran's OSA was related to active service. As a rationale for the opinion, the examiner noted that the Veteran has experienced symptoms for many years, which have worsened over the past two years leading to a recent diagnosis. The examiner also indicated he found no evidence the Veteran had a diagnosis of sleep apnea during active service. As noted above, the Veteran raised two secondary theories of service connection in her September 2016 VA Form 9. The record shows the RO requested and obtained an August 2017 VA medical opinion to address those secondary theories of service connection. The examiner opined the Veteran's OSA was less likely than not (less than 50 percent probability) incurred in or caused by the Veteran's active service. The examiner also opined that the Veteran's OSA is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected conditions. The examiner provided the same rationale for both opinions, noting that medical science does not support that HTN and CAD cause(s) or aggravate(s) OSA. The Veteran's June 2019 Appellate Brief raised another theory of secondary service connection. In August 2019, the Board remanded the claim noting that while the VA examination and medical opinions of record address service connection on a direct basis, as well as whether the Veteran's OSA is secondary to her service connected HTN or CAD, the new theory of secondary service connection due to MDD had not yet been addressed. The Veteran was afforded a new November 2019 VA sleep apnea examination. The examiner confirmed a diagnosis of OSA from November 2014. The report indicates the examiner reviewed the record. The examiner opined that the Veteran's OSA is less likely than not caused by, related to, or aggravated beyond natural progression by military service or the service connected MDD. As a rationale, the examiner noted there was no evidence of a complaint, diagnosis, or treatment of sleep apnea during service. At that time the Veteran had a BMI (body mass index) of 22.8 (noted normal). When the Veteran was diagnosed with OSA in 2014, her BMI was 34, which is markedly elevated. Elevated BMI and older age are primary risk factors for OSA. However, the examiner noted the peer reviewed medical literature does not support a nexus of causation between OSA and MDD, nor a nexus of aggravation. In a subsequent August 2020 remand, the Board found the opinions of both the August 2017 and the November 2019 examiners were conclusory statements that do not provide an adequate explanation of the medical principles underlying their conclusions. The Board also found that a new, current examination should be provided, to include a detailed review of the Veteran's history and a discussion of the medical principles underlying any stated conclusions. The Veteran was afforded a new September 2020 VA sleep apnea examination, wherein the examiner confirmed a diagnosis of OSA from November 2014. The examiner noted that the Veteran reported that the condition had progressed/worsened since onset. The examiner opined the Veteran's OSA is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected conditions. As a rationale, the examiner noted that medical literature does not include HTN, CAD, and MDD as established primary etiologies of OSA. The examiner noted that the Veteran's OSA was more likely secondary to her morbid obesity. While MDD as well as the associated treatments can lead to weight gain, the examiner pointed out that weight gain is multifactorial and can be prevented by exercise and diet, neither of which would be influenced by depression or associated medications. As to aggravation, the examiner indicated it is not possible to determine a baseline level of OSA severity based on the medical evidence available prior to aggravation or the earliest medical evidence following aggravation by HTN, CAD, and/or MDD. Regardless, the examiner opined the Veteran's OSA was not at least as likely as not aggravated beyond its natural progression by service connected HTN, CAD, and MDD. As a rationale, the examiner noted the Veteran's current sleep apnea (noted mild on November 2014) and described as sleeping 3-4 hours per night with use of CPAP falls within the projected natural history of the condition and does not represent aggravation beyond natural progression. The matter returned to the Board in February 2021 when the matter was remanded again for an addendum medical opinion. The Board observed that the September 2020 examiner seemed to rely on the fact that the Veteran was able to voluntarily prevent weight gain. The Board noted the question is not whether the Veteran can prevent weight gain through diet and exercise, but rather whether the weight gain that did occur was caused by her service-connected disabilities, such that obesity could serve as an "intermediate step" for establishing service connection on a secondary basis. The Board indicated this inquiry extends to both causation and aggravation. See Walsh v. Wilkie, 32 Vet. App. 300 (Feb. 24, 2020). The Veteran was afforded a new VA OSA examination in March 2021. A diagnosis of OSA was again confirmed from 2014. The examination report notes 2011 onset. The Veteran reported waking up gasping for air, her family reports she snores, and she has daytime fatigue that is also causing difficulty concentrating. The Veteran indicated that her CPAP no longer controls symptoms. The examiner provided three separate medical etiology opinions, one for each claim of secondary service connection based on HTN, CAD, and MDD. The examiner cited to the same central rationale for each opinion, noting that the conditions of HTN, CAD, and MDD are not medically related to OSA. Sleep apnea is entirely separate from these conditions and unrelated to them. A thorough review of medical literature failed to demonstrate that there is a causal relationship, and a nexus is thus not established. The examiner addressed aggravation, indicating it is not possible to determine a baseline level for severity of the Veteran's OSA based on medical evidence available prior to aggravation or the earliest medical evidence following aggravation by HTN, CAD, and/or MDD. Regardless, the examiner opined that the Veteran's OSA was not at least as likely as not aggravated beyond its natural progression by service connected HTN, CAD, and MDD. As a rationale, the examiner noted that a thorough review of medical literature failed to demonstrate a relationship between OSA and HTN, CAD, and/or MDD. Therefore, the Veteran's OSA was not aggravated by his service connected HTN, CAD, and/or MDD. Finally, the examiner addressed the Veteran's obesity, opining that her obesity is less likely than not (less than 50 percent probability) proximately due to or the result of the service-connected HTN, CAD, and/or MDD. As a rationale, the examiner noted that HTN and CAD are not medically related to obesity. A thorough review of medical literature failed to demonstrate a causal relationship and a nexus has not been established. The examiner noted that medical literature indicates MDD and obesity are medically related. However, the examiner opined the Veteran's obesity was not caused by MDD, as would be explained in the aggravation opinion. As to aggravation, the examiner indicated it is not possible to determine a baseline level for the severity of the Veteran's obesity based on medical evidence available prior to aggravation or the earliest medical evidence following aggravation by HTN, CAD, and/or MDD. Regardless, the examiner opined that the Veteran's obesity was not at least as likely as not aggravated beyond its natural progression by her service-connected HTN, CAD, and MDD. As a rationale, the examiner cited medical literature that indicated a sedentary lifestyle and psychological factors such as depression, low esteem, or absence of night sleep can also contribute to weight gain. In addition, excess body weight can contribute to OSA by causing increased pressure on the upper airways leading to collapse and decreased neuromuscular control because of fatty deposits that contribute to decreased lung volume and make it more difficult to breathe. Neck and waist circumference, and waist-to-hip ratio are also considerations between obesity and OSA. The examiner noted the literature on adults suggests that obesity is weakly associated with MDD. This matter returned to the Board in July 2021, when it was remanded again. The Board found that the March 2021 examiner did not fully address the Veteran's obesity as an intermediate step for establishing service connection on a secondary basis, as requested in the February 2020 Remand instructions. The RO obtained an August 2021 VA medical opinion. The examiner noted a review of the claims file and medical literature submitted by the Veteran. The examiner then opined that the Veteran's OSA is less likely than not (less than 50 percent probability) proximately due to or the result of Veteran's service-connected condition. As a rationale, the examiner noted it is established medical knowledge and practice that psychological comorbidities, including depression, do not cause or aggravate OSA. Although sleep disturbances such as insomnia are common with psychological conditions, they are mediated by the central nervous system and differ from the mechanism of OSA. Rather, OSA is caused by upper airway obstruction associated with apneic episodes. There is no physiologic or anatomic mechanism by which psychological conditions can cause or aggravate OSA. The examiner also noted that medications used to treat psychological comorbidities including sleep aids, sleeping pills, anti-anxiety medications, and antidepressants that may cause sedation do not cause obesity and any side effects could be ameliorated by stopping use of or adjusting the dosage. As to aggravation, the examiner indicated that the above does not constitute aggravation of the baseline OSA condition. The examiner opined it is less likely than not that the Veteran's OSA is due to or incurred by the Veteran's MDD or related psychological comorbidities. As a rationale, the examiner noted there is no evidence of aggravation of the Veteran's OSA beyond its natural course due to any cause. OSA tends to progress over time, often requiring CPAP adjustments or changes in treatment modality. While medical literature has suggested a possible association between OSA and depression, cause and effect, including aggravation, has not been established in the current, widely accepted, peer-reviewed medical literature. The examiner also opined it is less likely than not that the Veteran's OSA is due to or has been aggravated beyond its natural course due to her HTN or CAD. As a rationale, the examiner noted HTN and CAD are unrelated to causes of OSA. Essential HTN is due to increased peripheral vascular resistance; CAD is due to occlusion of the vessels supplying the muscle of the heart. The examiner noted both are unrelated anatomically or pathophysiologically to OSA. There is no relationship as to cause or aggravation. There is no evidence of aggravation beyond the natural course of the Veteran's OSA due to any cause. Addressing the Veteran's obesity, the examiner opined the Veteran's HTN, CAD and MDD did not cause her to become obese or aggravate her obesity, including as due to pain and functional impairment. As a rationale, the examiner noted that obesity is multifactorial. Regardless of an ability to exercise or the presence of the above noted conditions, the single greatest predictor is caloric intake. HTN would have no impact on obesity, nor would CAD, except as it pertains to exercise. As to her MDD, although depression may alter eating habits, that is just one aspect of obesity. Additional factors for obesity include family history, basal metabolic rate, exercise, types of calories consumed, and time of day consumed. The Veteran's CAD would not preclude light exercise or prescribed regimens consistent with cardiac rehabilitation standards. HTN and medications would have no impact on obesity. As no eating disorder has been diagnosed and caloric intake alone does not determine obesity, it is less likely than not that the Veteran's conditions caused obesity. The examiner observed the Veteran has been obese or near obese for nearly a decade prior to the November 2014 sleep study indicating mild to moderate OSA. Therefore, while obesity is a risk factor for OSA, the Veteran had been obese or near obese prior to her diagnosis of OSA, this eliminates obesity as the cause of the Veteran's OSA. The examiner continued, noting that the leading indicator of continued obesity and of increasing obesity is obesity itself. Although caloric intake is the single greatest cause, obesity is a multifactorial condition that cannot be linked to any one factor. The Veteran's weight gain has been steady and gradual, more consistent with endogenous obesity and its natural course. The Board observes that the Veteran's October 2021 Appellate Brief cites to medical literature to support the assertion that Veteran's with PTSD have a higher rate of OSA than the general population, indicating one reason may be disturbed sleep during combat operations. However, this study was identified and reviewed by the examiner as part of the August 2021 medical opinion. The Veteran is competent to report her OSA symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994). However, the question of whether her OSA is etiologically related to service or to a service-connected disability is medically complex, and beyond the scope of lay observation; it requires medical training and credentials. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As the Veteran is a layperson and has not cited to a supporting medical opinion, her opinion regarding a nexus between her OSA and service, to include as secondary to service connected HTN, CAD, and MDD, is of less probative value. Consequently, the Board gives more probative weight to the opinion of the August 2021 VA examiner who thoroughly reviewed the claims file and provided multiple negative etiology opinions including as to if the Veteran's obesity is an intermediate step to service connection on a secondary basis. Based on the above, the Board finds that the preponderance of the evidence is against the claim, and the claim of service connection for OSA is denied. The benefit-of-the-doubt rule does not apply, as the preponderance of the evidence in this matter is against a grant of service connection. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Banks, 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.