Citation Nr: 21073438 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 17-10 834A DATE: December 8, 2021 ORDER Service connection for obstructive sleep apnea, to include as due to a service-connected disability is denied. FINDING OF FACT The Veteran's obstructive sleep apnea manifested after service, is not caused by any aspect of service, and is not secondary to a service-connected disability and is not otherwise caused or aggravated by an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea as secondary to a service-connected disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty in the United States Navy from August 1993 to August 1995 with service in Southwest Asia. This matter comes before the Board of Veterans' Appeals (Board) from an April 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran submitted a Notice of Disagreement (NOD) in June 2016 and a Statement of the Case (SOC) was issued in March 2017. The Veteran perfected an appeal by submitting a timely VA Form 9 in March 2017. The issue was previously before the Board. Most recently, in May 2021, the Board remanded the appeal to the agency of original jurisdiction (AOJ) for additional development. Specifically, the Board directed the AOJ to obtain an addendum opinion on whether it is at least as likely as not that the Veteran's obstructive sleep apnea (OSA) was caused by his service-connected posttraumatic stress disorder (PTSD) and major depressive disorder; whether it is at least as likely as not that the Veteran's OSA was aggravated by his service-connected PTSD and major depressive disorder. In July 2021, the AOJ obtained a medical opinion on whether it is at least as likely as not that the Veteran's OSA was caused or aggravated by the Veteran's service-connected PTSD and major depressive disorder. Thus, the Board finds that the AOJ substantially complied with the remand directives and no further action is necessary in this regard. Stegall v. West, 11 Vet. App. 268 (1998). Following evidentiary development, the VA Appeals Management Center (AMC) continued the previous denial in a supplemental statement of the case (SSOC) issued in August 2021. The Veteran's VA claims file has been returned to the Board for further appellate proceedings. Service Connection Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for a disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected condition is also compensable under 38 C.F.R. § 3.310(a). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. Id.; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). "It is in recognition of our debt to our veterans that society has [determined that,] [b]y tradition and by statute, the benefit of the doubt belongs to the veteran." Gilbert, 1 Vet. App. at 54. Service connection for obstructive sleep apnea, to include as due to a service-connected disability The Veteran contends that his obstructive sleep apnea (OSA) was caused by his service-connected posttraumatic stress disorder (PTSD) and/or major depressive disorder (MDD). The Veteran had also contended that his obstructive sleep apnea was caused by exposure to harmful elements during service, and personnel records show service aboard an aircraft carrier deployed to Southwest Asia. In the alternative, the Veteran contends that his service-connected disabilities caused him to gain weight which caused OSA. Although obesity is not a disability for VA compensation purposes, obesity may act as an intermediate step between a service-connected disability and a current disability for which secondary service connection may be established. See VAOPGCPREC 1-2017 (Jan. 6, 2017). Service treatment records show that the Veteran did not complain of, receive treatment for, or was diagnosed as having OSA during service. The Veteran reported "sore throat on a couple of occasions" and other ailments in his report of medical history in July 1995 but denied having frequent trouble sleeping and depression or excessive worry. The Veteran was measured height at 64 inches and weight at 171 pounds in July 1995, 6 pounds less than his weight at entrance in June 1993. Both entrance and separation examinations noted that the Veteran's build was "heavy." In the entrance examination, the examiner noted that the Veteran was "[overweight by] 20 lbs." In the summary of defects and diagnoses, a note of "excess weight" was crossed out with a note of "cleared" in June 1993. Two tape tests were done in June and August of 1993 stating that the Veteran was qualified with body fat percentage of 22 and 23 percent respectively. The maximum percentage of body fat allowed was "less than 24 percent." Private medical treatment records show that the Veteran was diagnosed as having abdominal pain, acute appendicitis, tobacco use disorder, and other appendectomy in October 2001. A private practitioner observed that the Veteran was a "slightly overweight gentleman" and weighed 200.6 pounds. He weighed 209 pounds when he complained of lung pain in April 2002 and 206 pounds in July 2002 when he complained of left arm tingling and chest tightness. VA Medical Center treatment records show that the Veteran weighed 213 pounds with a body mass index (BMI) of 37 in March 2003. The Veteran reported smoking and drinking heavily. A screening for depression conducted on the same date shows that the Veteran denied being bothered by feeling down, depressed, or hopeless. Another screening done in July 2013, more than 10 years later, also showed that the Veteran's score was 0, which is a negative screen for depression. In November 2013, the Veteran's mother and a friend submitted statements. They reported that she observed unusual sleeping patterns and snoring when the Veteran returned from Navy service. In August 2014, the Veteran submitted a statement in support of his claim for PTSD stating that he experienced stressors while on board the USS. Constellation from December 1994. Although the Veteran stated that he was on the Constellation from December 1993, he specifically attributes his stressor to the vaccination that took place in December 1994. The Veteran also reported a racist incident "when [he] arrived to [his] first permanent duty station," presumably in December 1993. The Veteran stated that the racist comments went on for several months. In December 1994, in response to a November 1994 letter, the Department of the Navy notified the Veteran's stepfather that it will not tolerate maltreatment of service members. In June 2015, the Veteran underwent a VA respiratory examination. After X-rays, computed tomography scans, and pulmonary function tests, the examiner found no evidence of respiratory damage caused by airborne hazards. In September 2020, the Veteran underwent a VA examination for sleep apnea. The examiner noted the Veteran's report of the onset of symptoms of daytime fatigue, night awakenings, and snoring that started in 1994. The examiner noted the results of a 2013 study that showed severe OSA. After a review of the file and history, the examiner found that there was no evidence of an incident or injury that would result in the development of obstructive sleep apnea (OSA). Though, he was exposed to jet fuel there is no known evidence that this exposure results in OSA. His OSA is most likely the result of his [body mass index] BMI of 39.1 and it has been proven that obesity increases the risk of developing OSA. Thus, his currently diagnosed Obstructive Sleep apnea is less likely than not caused by an in service injury or disease including environmental hazards during service. In July 2021, a VA medical practitioner submitted an addendum opinion regarding the etiology of the Veteran's OSA. Regarding the Veteran's contention that his OSA was caused by service-connected PTSD, the examiner opined that such a causal relationship was less likely than not as the Veteran was diagnosed as having OSA in 2013, preceding the diagnosis for PTSD in 2016. The examiner acknowledged that medical literature supports an "association" between PTSD and OSA but stated that a causal nexus was not proven. The reasoning against MDD causing OSA was the same, as the diagnosis of OSA preceded the diagnosis of MDD in 2015. The Board finds that the July 2021 VA medical opinion to be adequate as it is supported by rationale. The examiner also opined that the Veteran's OSA was more likely caused by his weight as his Body Mass Index was 41.6 at the time of diagnosis, and his neck circumference was recorded as 44 cm. Regarding aggravation, the July 2021 VA examiner opined that the Veteran's OSA was not aggravated by the Veteran's PTSD and/or MDD as his OSA improved with the uses of CPAP and BIPAP machines. The examiner further explained that, while the Veteran still has interrupted sleep, his symptoms were less severe and that his sleep is documented to be more restful. In short, the examiner found that there was no evidence of worsening symptoms. The examiner also added that medical literature did not support the claim that PTSD nor MDD aggravated the progression of OSA beyond its natural progression. Again, the Board finds that the July 2021 VA medical opinion to be adequate as it is supported by rationale. In September 2021, the Veteran submitted a statement from a fellow sailor who, in pertinent part, witnessed the Veteran "wake up gasping for air out of a dead sleep and also stop breathing in his sleep." The fellow solider stated that he served with the Veteran from December 1993, slept in the same "birthing quarters in a bunk across from [him]" and noticed the Veteran's symptoms "around April 1994." The Veteran also submitted a private medical opinion from a consulting physician assistant in the same month. The physician assistant opined that the Veteran's OSA was secondary to his service-connected PTSD, MDD as well as to his multiple orthopedic conditions and chronic pain, with weight gain as an intermediary step. The Board, however, assigns less probative weight to the physician assistant's medical opinion as it is based on inaccurate or incomplete factual basis. On secondary causation, she did not cite medical literature that shows causation between the Veteran's PTSD and/or MDD and OSA. The physician's assistant cited studies that suggest that stress hormones can be generated as a result of anxiety and may lead to neural sensitization and upper airway dysfunction. The Board finds that the studies are relevant but are all speculative, base primarily on statistical associations and physical hypotheses not directly clinically assessed and applied to this Veteran's case. As discussed by the July 2021 VA examiner, although there is abundant medical literature showing an association between acquired psychiatric disorders and OSA, there is no medical literature that shows causation. The physician assistant also did not consider the Veteran's report in July 1995 that he had no sleep trouble or excessive worry. Although the physician dismisses the importance of the date of diagnosis of PTSD and MDD, arguing that the Veteran had already been suffering from PTSD and MDD "since active-duty," this is speculation, and she ignores the negative depression screens both in March 2003 and July 2013. Put another way, as contemporaneous medical evidence of record shows that the Veteran did not suffer from PTSD and MDD "since active duty," her opinion is based on inaccurate factual basis and her opinion on secondary causation are therefore inadequate. Regarding obesity, the physician assistant correctly notes that the Veteran weighed around 177 pounds at entrance and around 233 pounds currently. She did not, however, discuss that the Veteran's weight at separation was 171 pounds, 6 pounds less than his weight at entrance, suggesting that the service-connected orthopedic disabilities that occurred during service did not adversely affect the Veteran's weight. Moreover, she also did not discuss that the Veteran, who is recorded as being between 5 foot 4 inches and 5 foot 5 inches in height, was beyond the normal body weight for his height at the time of entrance and was marked as being "heavy," requiring a separate examination to be qualified. As discussed above, the Veteran also started gaining weight prior to being diagnosed as having depression, further contradicting the physician assistant's opinion of the Veteran's PTSD and/or MDD causing obesity. Specifically, in March 2003, more than a decade preceding the diagnosis of depression, the Veteran weighed 213 pounds, 30 pounds more than his weight at the time of separation from active duty in 1995. As her opinion is based on incomplete and inaccurate factual basis, it is inadequate and of no probative weight. The physician assistant did not opine on aggravation. Although the July 2021 VA examiner did not directly opine on the etiology of the Veteran's weight gain, the Board finds that he indirectly opined that the weight gain was not due to PTSD and/or MDD by finding that the diagnosis of OSA preceded both PTSD and MDD diagnoses. As he found that OSA, caused by obesity, preceded both PTSD and MDD, it logically follows that obesity also preceded both PTSD and MDD, and therefore could not have been caused by either PTSD and/or MDD. The Board also notes that while the Veteran may have had symptoms of OSA, the diagnosis of sleep apnea requires special testing, and therefore the presence of symptoms do not automatically establish that the Veteran had OSA at the time he was experiencing symptoms. Rather, the medical evidence of record shows that the Veteran was diagnosed as having OSA in August 2013. Although it is reasonable to suggest that he has had OSA prior to August 2013, there is no medical evidence of record to state that he has had OSA during service. The Board places less credible weight on the Veteran's and fellow sailor's reporting of interrupted nighttime breathing as the onset of a chronic disorder because the Veteran specifically denied any sleep problems during the discharge examination. The Board places less weight on the mother's and friend's report of observing interrupted sleep and snoring as that occurred after service. The Board further considered the contention that airborne hazards such as fuel vapors, dust during shipyard work, and Gulf War hazards are causes for OSA. Presumptive service connection under 38 C.F.R. § 3.317 is not warranted because the disorder has a specific diagnosis, onset many years after service, and has a specific etiology, that is the Veteran's body habitus. The Board also places weight on the June 2015 examination and October 2020 VA opinion that addressed fuel vapors and that the OSA does not include lung damage associated with inhaling contaminants. In summary, the medical evidence of record shows that the Veteran was overweight at the time of entrance, has had symptoms suggestive of OSA during service after experiencing racism, denied having any trouble sleeping or depression at separation, did not score positive in depression screens conducted in March 2003 and July 2013, weighed 213 pounds in March 2003, was diagnosed as having OSA in August 2013, was diagnosed as having MDD in 2015, and was diagnosed as having PTSD in 2016. Thus, of the two contrary medical opinions of record, the Board finds that only the July 2021 VA medical opinion is based on accurate factual basis and therefore given probable weight. Therefore, the evidence in this case is not so evenly balanced as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 54. The preponderance of the evidence is against the Veteran's claim, and as such entitlement to service connection for obstructive sleep apnea, to include as due to a service-connected disability, is denied. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H.S. Yun, 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.