Citation Nr: 21070994 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 16-46 947 DATE: November 29, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is denied. FINDING OF FACT Obstructive sleep apnea was not shown in service, is not causally or etiologically related to herbicide agent or contaminated water exposure during service, and was not caused or aggravated by service-connected post-traumatic stress disorder (PTSD). CONCLUSION OF LAW The criteria to establish service connection for sleep apnea have not been met. 38 U.S.C. § 1110, 5103(a), 5103A, 5107; 38 C.F.R. § 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1966 to June 1969, including combat in the Republic of Vietnam for which he received the Combat Action Ribbon, Vietnam Campaign Medal with "V" device, and Vietnam Service Medal with Three Stars. This appeal comes to the Board of Veterans' Appeals (Board) from an October 2014 rating decision of the Department of Veterans' Affairs (VA) regional office (RO). In July 2019 the Board denied reopening the claim for service connection for sleep apnea, to include as secondary to PTSD. This was appealed to the Court of Appeals for Veteran's Claims (CAVC), and in May 2020 CAVC granted a Joint Motion for Remand, vacating the denial and remanding the issue to the Board. In October 2020 the Board reopened the claim and remanded it for further development. The Board remanded the issue again in May 2021. Relevant to both theories of service connection discussed below, the Veteran was diagnosed with sleep apnea in July 2012, which was most recently confirmed in August 2021. See, 2012 CAPRI and August 2021 C&P examination. The first element of service connection, a current disability, is therefore established. Service connection for obstructive sleep apnea claimed as secondary to service-connected PTSD In the context of claims for secondary service connection, the evidence must demonstrate an etiological relationship between the service-connected disability or disabilities and the condition said to be proximately due to the service-connected disability or disabilities. Buckley v. West, 12 Vet. App. 76, 84 (1998). The Veteran asserts his obstructive sleep apnea is a result of his service-connected PTSD. Five VA examinations/medical opinions have been provided to address the sleep apnea claim. See August 2012, December 2020, January 2021, February 2021, and August 2021 VA examination reports. In August 2012 the Veteran underwent a VA examination. The examiner opined that the Veteran's obstructive sleep apnea is less likely than not proximately due to or the result of the Veteran's service-connected PTSD. He explained that "PTSD does not cause obstructive sleep apnea. PTSD can cause sleep disorders as outlined in the mental health evaluation but this is different from and unrelated to obstructive sleep apnea." He further explained: obstructive sleep apnea is a physiologic disorder in which the airway is intermittently occluded causing a drop in the patient's oxygen level and disruption of normal sleep patterns. This leads patients to not feel rested and is improved with CPAP which keeps oxygen levels in the normal range and restores normal sleep patterns. The Veteran was afforded a C&P examination on December 9, 2020 in conjunction with the reopened claim. There the examiner stated the conditions of sleep apnea and PTSD are not related, stating that sleep apnea is a separate entity entirely from PTSD. The examiner stated that studies have shown the disruptions that occur in sleep are often related to the underlying symptoms of PTSD, but there is no established etiological basis for sleep apnea due to PTSD. See December 2020 C&P. However, the examiner did not address whether the claimed condition was at least as likely as not aggravated by the PTSD. As such the Veteran was afforded another C&P examination on January 27, 2021. The examiner stated the claimed condition is less likely than not proximately due to or the result of the Veteran's service-connected PTSD, again explaining that sleep apnea and PTSD are not medically related. The examiner noted the Veteran's lay statements, and concluded that while the Veteran is competent to provide a history of his symptoms, he is not capable of diagnosing the medical condition related to those symptoms. An addendum medical opinion was requested and provided on February 22, 2021. The examiner concluded the Veteran's sleep apnea was less likely than not aggravated by the service-connected PTSD. The examiner also stated the Veteran's sleep apnea is less likely than not proximately due to the service-connected PTSD. The examiner explained that while some studies have suggested a possible association between sleep apnea, PTSD and other related psychological comorbidities, cause and effect, including aggravation, has not been established in the current, widely accepted, peer-reviewed medical literature. The examiner states there is no further credible medical evidence to support the suggestion that the anatomical condition of sleep apnea can be caused by mental health conditions such as PTSD. The examiner concludes there is no pathophysiology to support a mechanism for aggravation. The May 2021 Board remand asked a clinician to: determine whether it was at least as likely as not the Veteran's sleep apnea was caused or aggravated by his service-connected PTSD, providing an opinion on both causation and aggravation; consider the pertinent evidence of record, including the Veteran's statements that he sleeps better and his nightmares are reduced when using his CPAP machine, and studies provided by the Veteran's representatives. The remand also requested direct service connection opinions regarding a nexus between sleep apnea and exposure to contaminates at Camp Lejeune and herbicide exposure in Vietnam. Per the Board remand, the Veteran was afforded another C&P examination in August 2021. The examiner explained that established medical knowledge and practice do not related PTSD to sleep apnea. Though sleep disturbances such as insomnia are common with psychological conditions. They are different conditions entirely and there is no physiological or anatomic mechanism by which psychological conditions can cause or aggravate sleep apnea. This includes medication that may be used to treat PTSD that can cause sedation, but that does not cause or aggravate the mechanisms of sleep apnea. The examiner considered the Veteran's report of nightmares improving while using the CPAP, but concluded that obstructive sleep apnea "is not necessarily related to nightmares and their improvement on CPAP is likely multifactorial and could be related to the fact that he just sleeps better. Thought that contention further supports a lack of aggravation of OSA." The Board takes the examiner's point that if sleep apnea treatment did indeed have an effect on PTSD symptoms, this would not support a finding of aggravation of sleep apnea by PTSD. The Board finds that the VA examinations, taken together, are adequate for evaluation for secondary service connection purposes. Specifically, the examiners reviewed the claims file and medical literature and addressed both causation and aggravation. There is no indication the VA examiners were not fully aware of the Veteran's past medical history or that they misstated any relevant fact. Moreover, the examiners had the requisite medical expertise to render a medical opinion regarding the etiology of the disorder and had sufficient facts and data on which to base the conclusion. Finally, and perhaps most importantly, there is no contradicting medical evidence of record. Therefore, the Board finds the VA examiner's opinion to be of great probative value. In an October 2021 appellate brief, the Veteran's representative argued that the opinions of record failed to provide adequate and separate rationales for causation and aggravation as required by Atencio v. O'Rourke, 30 Vet. App. 74 (2018). The Board disagrees and finds that February 2021 and August 2021 opinions in particular provided separate and distinct opinions on causation and aggravation, providing unique and adequate rationales. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the etiological relationship between PTSD and sleep apnea falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Therefore, while the Board does not doubt the sincerity of the Veteran' s belief, his opinion is not competent evidence of nexus. Regarding the articles and abstract submitted by the Veteran, medical treatise evidence can, in some circumstances, constitute competent medical evidence, especially when combined with an opinion of a medical professional. See Sacks v. West, 11 Vet. App. 314, 317 (1998); 38 C.F.R. § 3.159(a)(1). However, generic information in a medical journal or treatise is normally too general and inconclusive to constitute the sole basis for establishing a medical nexus to a disease or injury. Mattern v. West, 12 Vet. App. 222, 227 (1999); see also Wallin v. West, 11 Vet. App. 509, 514 (1998) (treatise evidence must "not simply provide speculative generic statements not relevant to the Veteran's claim.") Here, the submitted articles are general in nature and have not been specifically related to the Veteran by a medical professional. On the contrary, the only medical professional who reviewed and addressed them stated they were not the most up to date, peer reviewed, largest available studies. As the information provided by the Veteran is not specific to the facts of his case, the Board affords this evidence little probative weight. Likewise, because the VA physician's opinions are specific to the Veteran's case, fully articulated, supported by a well-reasoned analysis with supporting medical treatise information, it is entitled to much greater probative value than the submitted general research. The Board has reviewed all medical and lay evidence, but finds there is no probative evidence of record which establishes a causal relationship between the Veteran's sleep apnea and service-connected PTSD. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for secondary service connection. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Direct service connection for obstructive sleep apnea Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection for sleep apnea may still be granted on a direct basis if a medical nexus between his service and present diagnosis can be shown. The Board finds this is not the case. 38 U.S.C. § 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. The Veteran served in combat in the Republic of Vietnam and is presumed to have been exposed to herbicide agent as a result of his active duty service during the Vietnam Era. 38 C.F.R. § 3.307(a)(6)(iii). In May 2021 the Board remanded the current issue to obtain Service Personnel Records to confirm how long the Veteran served at Camp Lejeune. The requested records indicate the Veteran served at least 30 days between August 1, 1953 and December 31, 1987. See, August 10, 2021 SSOC. He is therefore presumed to have been exposed to contaminated water at Camp Lejeune. 38 C.F.R. § 3.307(a)(7)(iii). As such, the second element of direct service connection, an in-service injury of exposure to herbicide agent and contaminated water, has been established. Finally, the Board must address a nexus between the present disability and the disease or injury incurred or aggravated during service The January 2021 VA examiner concluded the claimed condition was less likely than not incurred in service or caused by the claimed in-service injury, event, or illness. The examiner noted the Veteran's medical records, including his service treatment records (STRs) do not note any medical evaluations, treatment, or diagnosis for sleep apnea while on active duty. An addendum medical opinion was requested and provided on February 22, 2021. The examiner explained they reviewed all available medical records. The Veteran was diagnosed with sleep apnea in 2012, which is over 40 years after separation from active service. The examiner further explained that sleep apnea is an anatomical condition that results in temporary occlusion of the airways while an individual sleeps, and that there is no credible medical evidence to support a causal link between sleep apnea and any hazardous exposure. The Veteran was most recently afforded a C&P examination in August 2021. The examiner concluded the Veteran's sleep apnea was less likely than not incurred in or caused by the in-service injury, event, or illness. The examiner explained the Veteran was diagnosed with obstructive sleep apnea in 2012, over 40 years after the Veteran left active service. The examiner also noted the Veteran's STRs do not show any instance of the Veteran seeking treatment or help for a sleep disorder. The examiner explained there is no evidence of sleep apnea during the Veteran's active service, and stated it is highly unlikely a significant sleep disorder would have gone unnoticed. They explained that while there may be a lag in a diagnosis, over 40 years after service would be remarkable. The examiner noted symptoms of snoring, daytime fatigue and somnolence, insomnia, difficulty falling asleep, fitful sleep, movements during sleep, choking, and gasping are general symptoms but do not constitute a diagnosis of sleep apnea. The examiner also stated Agent Orange and Camp Lejeune water contamination have not been associated with obstructive sleep apnea as to cause and effect, explaining current medical literature fail to return articles that suggest such a connection. The examiner concluded that the Veteran's sleep apnea was not present at his separation from active service and it did not develop within one year or even three decades from service. It is less likely than not due to Agent Orange exposure and drinking contaminated water from Camp Lejeune. The Board finds this opinion to be persuasive. The examiner provided a clear conclusion with supporting data, and a reasoned medical explanation. They specifically consider the Veteran's lay statements and testimony, as well as the medical evidence of record, and apply this evidence to known medical principles. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran has not submitted any competent nexus evidence to support direct service connection. In an October 2020 brief, the Veteran's representative stated, "dioxins should not be ignored, either in Vietnam or at Camp Lejeune." Links were provided to two articles; one stating fish were still contaminated with dioxins at Camp Lejeune and the other addressing sleep disorders among a group exposed to dioxins. Neither article relates sleep apnea to dioxin exposure; moreover, these are generic and not related to the disability claimed by the Veteran nor have they been related to the Veteran by a medical opinion. These links are not competent medical evidence to constitute the sole basis for establishing a medical nexus. Sacks, 11 Vet. App. at 317; Mattern, 12 Vet. App. at 227; Wallin, 11 Vet. App. at 514. A nexus between the Veteran's sleep apnea and his active service has not been established. Entitlement to service connection for obstructive sleep apnea is denied on a direct basis. (Continued on the next page) As the competent, probative evidence of record weighs against service connection for obstructive sleep apnea on a secondary or direct basis, the claim is denied. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Brewer, 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.