Citation Nr: 21070404 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 18-27 478 DATE: November 23, 2021 ORDER Service connection for obstructive sleep apnea, to include as secondary to posttraumatic stress disorder, is denied. FINDING OF FACT The Veteran's obstructive sleep apnea is not secondary to his service-connected posttraumatic stress disorder and is not otherwise related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea, to include as due to service or service-connected posttraumatic stress disorder, are not met. 38 U.S.C. §§ 1110, 1131, 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 June 1975 until his honorable discharge in June 1979. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 decision by the Atlanta, Georgia, Regional Office of the United States Department of Veterans Affairs (VA). In February 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. In March 2020 and July 2021, the Board remanded the case to the VA Regional Office for further development. Specifically, the Board directed the VA Regional Office to obtain a VA examination and medical opinions addressing the etiology of the Veteran's sleep apnea. The case now returns to the Board for adjudication. Evidentiary Standards In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 12829 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claim. Service Connection VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a "service connection." 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to be entitled to service connection there must be competent, credible evidence of (1) a current disability, (2) an in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). When these elements are satisfied, service connection may be granted on a direct basis. Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of, or aggravated by, a service-connected disability. 38 C.F.R. § 3.310(a), (b). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) a current disability exists, (2) the veteran has a service-connected disability; and (3) the current disability was either (a) proximately due to or the result of; or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439, 448 (1995). Where aggravation is the relied upon theory, compensation may only be provided to that degree over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); Allen, 7 Vet. App. at 448. Analysis Direct Service Connection First element: A current disability The Veteran has a current diagnosis of obstructive sleep apnea according to his VA medical records, having been diagnosed around 2011/2012. Subsequent VA-contracted examinations have confirmed that diagnosis. Therefore, the first element is satisfied. Second element: An in-service event, injury, or illness, or aggravation thereof The Veteran asserts that during his active military service he experienced "insomnia," "sleep disturbances," and "snoring and stopped breathing." See, e.g., June 2011 VA Form 21-4138, Statement in Support of Claim; March 2018 Decision Review Officer Conference Report. He cites a 1978 in-service medical treatment record in which the treating medical professional recorded the Veteran reported congestion, sore throat, dizziness, cough, and a hard time sleeping for the preceding two weeks. The medical professional diagnosed him with an upper respiratory infection. During his February 2020 Board hearing, he testified that he was told by his roommates that he snored a lot, and he generally had a difficult time sleeping. February 2020 Hearing Transcript, at 9. He reported he did not go to sick call for his sleeping issues. Id. The Board finds the Veteran's statements and testimony credible to the extent they describe sleeping issues in service. His in-service medical records document a report of sleeping issues, which further lends support to the Veteran's credibility. Therefore, the Board finds the second element, an in-service onset of generalized sleep issues, is satisfied. Third element: A causal link The VA Regional Office has obtained two VA-contracted medical opinions addressing the etiology of the Veteran's obstructive sleep apnea. In a June 2020 opinion, the VA-contracted examiner opined that the Veteran's obstructive sleep apnea was less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner reasoned that the Veteran's in-service medical records did not document a diagnosis of obstructive sleep apnea. His obstructive sleep apnea was not diagnosed until over 30 years following his separation from service. The Board previously found this opinion insufficient because the examiner did not address the Veteran's lay statements of record, only relying on an absence of an in-service diagnosis. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (noting that an examiner's opinion relying on the absence of contemporaneous medical evidence "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim of service connection could be proven"). Nor did the examiner address any of the articles submitted by the Veteran in support of his claim. The VA Regional Office obtained a second opinion in September 2021. The VA-contracted examiner indicated he reviewed the Veteran's electronic claims folder. He specifically cited that he reviewed the Board's July 2021 Remand Order, June 2020 VA-contracted examination, a 2011 sleep study, titration studies dated November 2017 and May 2018, the Veteran's in-service medical treatment records, as well as pertinent post-service treatment records. The examiner also cited review of the literature submitted by the Veteran associated with his claim for service connection for sleep apnea as directed by the Board's Remand Order. The September 2021 examiner opined that the Veteran's obstructive sleep apnea was less likely than not incurred in or caused by a claimed in-service injury, event, or illness. The examiner explained that he found no evidence that the Veteran experienced obstructive sleep apnea in or approximate to his active military service. It was not until 2011, 33 years post-service, that the Veteran received a diagnosis of mild to moderate obstructive sleep apnea. The examiner considered the Veteran's reported in-service snoring, daytime fatigue and somnolence, fitful sleep, insomnia, easy awakening, movements during sleep, stopped breathing, and he explained that such symptoms "represent[ed] generalized symptoms with various potential causes." There was a lack of sufficient evidence to substantiate that such symptoms were indicative of obstructive sleep apnea in-service. It was his professional opinion that the Veteran's obstructive sleep apnea likely had its onset in 2010 or 2011, not during service based on all relevant evidence of record. The examiner also offered a separate opinion addressing whether the Veteran's in-service diagnosis of an upper respiratory infection in service had a medical relation to his obstructive sleep apnea. The examiner opined that the Veteran's in-service upper respiratory infection played no role in the development of his obstructive sleep apnea. In addition to the rationale discussed above, the examiner added that the Veteran's in-service upper respiratory infection was acute. An "acute" condition is generally defined as "having a short and relatively severe course." See Dorland's Illustrated Medical Dictionary 25 (31st ed. 2007). A "chronic" condition is generally defined as "persisting over a long period of time." Id. at 365. Given the isolated instance of the illness, its resolution, and the development of obstructive sleep apnea some 30 years after the Veteran's separation from military service, the examiner concluded there was no causal link between the two. The Board finds the September 2021 examiner's opinion as to direct service connection the most credible and probative evidence of record. The examiner relied on accurate facts within his rationale. His rationale considered and addressed the Veteran's lay statements about his onset of symptoms. The examiner considered and addressed the Veteran's medical history, in-service medical records, and post-service medical records. His rationale sufficiently connects the facts on which he relied to his ultimate conclusion. Based on the examiner's opinion and supporting rationale, the Board finds that the Veteran's obstructive sleep apnea did not have its onset in service and is not otherwise due to an in-service event, injury, or illness. As the evidence of record weighs against establishing a causal link, the third element is not satisfied. The Board has considered the Veteran's own belief that he experienced sleep apnea of some sorts in service. The Board has also considered, to the extent reasonable, the Veteran's statements about the continuity of his symptoms since service. The Board acknowledges the Federal Circuit has held that lay persons are not categorically incompetent to speak on matters of medical diagnosis or etiology. Davidson, 581 F.3d at 1316. The Federal Circuit has held that the Board can favor competent medical evidence over lay statements offered by the Veteran if the Board neither deems lay evidence categorically incompetent nor improperly requires a medical opinion as the sole way to prove causation. King v. Shinseki, 700 F.3d 1339, 1344 (2012). While the Board finds the Veteran competent to report the sleep disturbances he experienced in service, and that he and his spouse are each competent to report what symptoms he experienced following service, the Board finds that without evidence showing that either of them have the necessary medical training or expertise, they cannot competently opine that his obstructive sleep apnea had its onset in service or that it was otherwise caused by his service. See 38 C.F.R. §§ 3.159(a)(1), (2); Jandreau v. Nicholson, 493 F.3d 1372, 1377 (Fed. Cir. 2007) (noting general competence of laypersons to testify as to symptoms but not medical diagnosis). The Board also finds a lack of probative evidence indicating continuity of symptoms associated with sleep apnea. The Veteran's statements, as well as those of his spouse, are too generalized to be of any probative value to permit the Board to conclude he has had obstructive sleep apnea since his separation from service. The Board finds the September 2021 examiners' opinion as to the onset of the Veteran's obstructive sleep apnea in 2010/2011 more credible and probative than any lay statements offered by the Veteran or his spouse because it is based on a thorough consideration of the Veteran's medical history, including his in-service and post-service medical records, as well as a review of the Veteran's lay statements. To the extent the Veteran has offered medical literature related to establishing that his obstructive sleep apnea is related to his military service, the Board finds his literature is not probative. The Veteran has not offered any explanation of how the literature he has provided relates to the particular facts of his case. See Herlehy v. Brown, 4 Vet. App. 122, 123 (1993) (noting that medical opinions as to individuals are ordinarily more probative than general medical treatises). The September 2021 examiner considered all of the literature and found that it related to his claim under the theory of secondary service connection, rather than direct service connection, which will be discussed next. Even so, the literature was not probative of whether the Veteran's obstructive sleep apnea was caused by his military service or secondary to his posttraumatic stress disorder. Accordingly, the Board concludes that service connection on a direct basis for obstructive sleep apnea is not warranted based on the evidence of record. Secondary Service Connection First element: A current disability As stated, the Veteran has a current diagnosis of obstructive sleep apnea. Therefore, the first element is satisfied. Second element: A current service-connected disability The Veteran is currently service connected for posttraumatic stress disorder (PTSD), effective February 22, 2011. This is the service-connected disability that he cites as the basis for his present secondary-service-connection claim. The Veteran is also service connected for tinnitus, but he does not argue that disability is the basis for his secondary-service-connection claim, nor does a reasonable review of the record raise any such claim. See Robinson v. Mansfield, 21 Vet. App. 545, 552 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (Board is required to consider theories of entitlement to benefits that are either raised by the claimant or reasonably raised by the record). Therefore, the Board finds the second element is satisfied. Third element: A causal link Causation "Proximate cause" is defined as "[t]hat which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces injury, and without which the result would not have occurred." Black's Law Dictionary 1225 (6th ed. 1990); VAOPGCPREC 6-03 (adopting this definition). When there are potentially multiple causes of a harm, an action is considered to be a proximate cause of the harm if it is a substantial factor in bringing about the harm and the harm would not have occurred but for the action. VAOPGCPREC 6-03. VA General Counsel precedential opinions are binding on the Board. 38 U.S.C. § 7104(c); 38 C.F.R. § 14.507. The September 2021 examiner opined that the Veteran's obstructive sleep apnea was less likely than not caused by his anxiety or related psychological comorbidities associated with PTSD. The examiner reasoned that psychological comorbidities, such as PTSD, do not cause obstructive sleep apnea. He explained that established medical knowledge and practice indicate sleep disturbances, such as the Veteran's insomnia, are common with psychological conditions, to include PTSD. This is because such symptoms are controlled by the central nervous system and differ from the physical mechanics of obstructive sleep apnea as it is due to upper airway obstruction associated with apneic episodes. Thus, the examiner concluded there is no physiologic or anatomic mechanism by which psychological conditions can cause obstructive sleep apnea, to include any medications used to treat related comorbidities. In addressing the literature submitted by the Veteran, the examiner acknowledged that studies have suggested a possible association between obstructive sleep apnea, PTSD, depression, and anxiety, but he stated that a cause-and-effect relationship have not been established in the current, widely accepted, peer-reviewed medical literature, to include Up to Date, a respected professional medical resource. On the examiner's review of the studies cited by the Veteran, he found they drew no conclusions as to causal links between obstructive sleep apnea and PTSD. On independent review of the Veteran's literature, the Board finds the examiner's conclusion is accurate. The Board finds the examiner's opinion as to causation highly credible and probative as it is supported by a logical rationale connecting the facts relied on to the ultimate conclusion. The examiner relied on accurate facts, and considered and addressed the Veteran's medical history, medical records, lay statements, and medical literature. Overall, the opinion is adequate. Aggravation "Aggravation" in the context of secondary service connection is demonstrated when there is "[a]ny 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." 38 C.F.R. § 3.310(b). The September 2021 examiner opined that the Veteran's obstructive sleep apnea was less likely than not aggravated by his PTSD. In addition to the above-cited rationales provided by the examiner in relation to his direct service connection opinion and secondary service connection opinion addressing causation, the examiner explained that psychological comorbidities, including depression, PTSD, and anxiety do not aggravate obstructive sleep apnea. He again explained that obstructive sleep apnea and psychological disorders, such as PTSD, have different physiologic or anatomic mechanisms, and bear no relation to each other. He also explained that medication to treat psychologic disorders, such as sleep pills or anti-anxiety medications, may cause sedation but cannot aggravate the mechanism by which obstructive sleep apnea occurs. Therefore, use of medications does not constitute aggravation of the baseline of obstructive sleep apnea. The examiner then explained that obstructive sleep apnea tends to progress over time, often requiring CPAP adjustments or changes in treatment modality. He noted the Veteran's titration studies in 2017 and 2018, which indicated a stable disease to him. Again, he acknowledged that although the studies cited by the Veteran suggest a correlation between obstructive sleep apnea and PTSD, and psychological comorbidities, none of the medical literature drew a causative link between them, to include aggravation of obstructive sleep apnea by PTSD. Overall, the examiner concluded that the Veteran's obstructive sleep apnea was not aggravated by his PTSD or any associated psychological comorbidities, to include as due to medication use. The Board finds the examiner's opinion as to aggravation highly credible and probative as it is supported by a logical rationale connecting the facts relied to the ultimate conclusion. The examiner relied on accurate facts, and considered and addressed the Veteran's medical history, medical records, lay statements, and medical literature. Overall, the opinion is adequate. In sum, the examiner's opinions addressing the secondary theories of causation and aggravation are highly credible and probative due to the thorough rationales offered in support. The Board finds a lack of credible and probative evidence of record contradicting the examiner's opinions. Therefore, the Board finds the third element, a causal link, is not satisfied. Accordingly, service connection for obstructive sleep apnea as secondary to service-connected PTSD is not warranted. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, 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.