Citation Nr: 21073934 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 16-13 289 DATE: December 13, 2021 ORDER Entitlement to service connection for obstructive sleep apnea, to include as being secondary to posttraumatic stress disorder (PTSD), is denied. FINDING OF FACT Obstructive sleep apnea did not have its onset in service, was not caused by or otherwise related to active duty, and this disability is not caused or aggravated by the service-connected PTSD. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea, to include as being secondary to PTSD, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from October 1999 to April 2007. The Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge in August 2019. This case was previously before the Board in December 2019, at which time, the Board denied the claim for service connection for obstructive sleep apnea, to include as being secondary to PTSD. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In May 2021, the Veteran and the Secretary of VA (parties) entered into a Joint Motion for Partial Remand (Joint Motion) relating to the issue of service connection for obstructive sleep apnea, which was granted by the Court the same month. The parties agreed that a remand of the issue was necessary because the Board failed to ensure that an adequate examination was provided. Accordingly, the Board remanded the matter on appeal in September 2021 to obtain an addendum VA medical opinion addressing the causal relationship between the Veteran's current obstructive sleep apnea and his active duty and his service-connected PTSD, to include whether his PTSD caused or aggravated his obstructive sleep apnea. Such a medical opinion was obtained and associated with the claims file in October 2021 and the Agency of Original Jurisdiction (AOJ) readjudicated the matter on appeal in an October 2021 supplemental statement of the case (SSOC). Thus, the Board determines that there was substantial compliance with the Board's September 2021 remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran contends that his current obstructive sleep apnea was caused by his active duty and/or was caused or aggravated by the service-connected PTSD. For example, he testified during the August 2019 Board hearing that his shift work as an air traffic controller exacerbated his snoring and contributed to his sleep apnea. He reported being on deployments in 2002 and 2005, where he worked only day shifts. He stated that he did not remember being asked wellness questions during service, such as how his sleep was or whether he had any issues sleeping. He testified he had trouble sleeping, and believed that was the cause of his being tired but he did not attribute being tired to sleep apnea. The Veteran further testified that he would not have gone to sick call to report he was snoring because he would be laughed at or get in trouble. He noted that his wife has told him throughout his military career about hearing him snore and stop breathing while sleeping and her having to wake him up. The Veteran testified he has always had snoring issues and that he believes his shift work exacerbated the problem. Additionally, the Veteran asserted within the March 2016 Substantive Appeal to the Board (VA Form 9) that his sleep apnea, coupled with PTSD and shift work, should warrant evidence that sleep apnea occurred during his time in service. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In order to establish service connection for a current disability, a veteran must show: (1) the existence of a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Service connection may also be granted 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). When service connection is established for a secondary disability, the secondary disability shall be considered a part of the original disability. Id. 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). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case, the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against a finding of service connection for obstructive sleep apnea. The reasons follow. At the outset, the Board notes that the Veteran has been diagnosed with obstructive sleep apnea. For example, an April 2015 VA pulmonary diagnostic study report shows that he was diagnosed with obstructive sleep apnea, sleep-related hypoxemia/hypoventilation, and obesity following an overnight polysomnography study. Therefore, the facts establish that the first element of a service-connection, i.e., the existence of a present disability, is met. As to evidence of a disease or injury in service, the service treatment records do not show that the Veteran had complaints or treatment indicative of having sleep apnea. In fact, the Veteran asserted in the March 2016 VA Form 9 that he was not examined, treated, or tested for a sleep disorder while in service. He further noted that he was never asked during questionnaires about his sleep health. However, a review of his service treatment records shows that he reported that he was in excellent health; denied feeling tired; denied having fatigue or excessive fatigue; denied having loss of energy or little energy; denied frequent trouble sleeping; denied trouble falling or staying asleep; and denied still feeling tired after sleeping. These responses from the Veteran can be found in the record in a March 2002 Post-Deployment Health Assessment; March 2002, June 2002, July 2002, August 2002, December 2002, January 2003, February 2003, and May 2005 service treatment records; the February 2004 Report of Medical History; the August 2005 Pre-Deployment Health Assessment; a January 2006 PTSD Checklist; a February 2006 Global Health Assessment; a November 2006 Post-Deployment Health Assessment; and, a January 2007 Report of Medical Assessment. The Veteran's denials of symptoms that are indicative of sleep apnea cover almost a five-year period and tend to show that he was not noticing that his sleep was affected or that he was not getting enough sleep during service. In addition to the Veteran's statements noted above, the Veteran's wife submitted an August 2019 statement in which she noted that the Veteran was "always tired," and that she had to shake him awake when she noticed he stopped breathing while sleeping. While the Board acknowledges the Veteran's testimony during the August 2019 Board hearing and the written statement made by the Veteran's wife as to these symptoms that tend to be indicative of sleep apnea, the Board affords high probative value and credibility to what the Veteran documented in his concurrent service treatment records, as the Veteran completed these records contemporaneously with service. Furthermore, the Veteran's responses in the service treatment records are especially probative, as statements made to medical professionals are especially trustworthy because the declarant has inherent incentive to give the most accurate history to receive the best or most appropriate medical care. These service treatment records show that the Veteran consistently denied being tired, having little energy, having loss of energy, frequent trouble sleeping, trouble falling or staying asleep, and still feeling tired after sleeping, which in-service statements refute what the Veteran and his wife have alleged during the current appeal, which allegations began approximately more than seven years following service separation, or in August 2014. Moreover, at the time of the Veteran's separation from service, he was not complaining of symptoms indicative of obstructive sleep apnea and had not complained of symptoms indicative of sleep apnea in the five years (2002 to 2007) prior to his service discharge. Thus, the Board finds that the preponderance of the evidence is against a finding that the Veteran's sleep apnea had its onset in service. Regarding the third element of direct service connection, i.e., evidence of a nexus between the current disability and service, the Board finds that the preponderance of the evidence is against a nexus. The record shows that although the Veteran was treated regularly following service discharge, he was not reporting symptoms indicative of sleep apnea until he submitted the current claim for service connection in August 2014. Specifically, while the Veteran asserts that his sleep apnea made him tired, he denied being tired during service, and he also did not report being tired when treated on multiple occasions in the years following service discharge. For example, when seen on two occasions in April 2009, as well as being seen in May 2009 and June 2010, the medical professionals noted that the Veteran was awake and alert. While the Veteran was reporting multiple medical symptoms during these appointments, he did not report symptoms that would be indicative of sleep apnea, including such symptoms as stopping breathing while sleeping, waking up tired, being told he snored loudly, and being fatigued. Furthermore, in April 2009 and June 2010, a medical professional examined the Veteran's mouth and specifically noted that his tonsils were without exudate, the uvula was normal, and the posterior oropharynx was normal. At the time the Veteran was seen by a private medical professional in June 2010, during which he was not reporting symptoms indicative of sleep apnea, it had been more than three years since his service discharge. The Board finds that this multi-year time gap between service separation and the Veteran's continued denial of symptoms indicative of sleep apnea is evidence that tends to weigh against a nexus between obstructive sleep apnea and service. Furthermore, as noted above, the Veteran submitted the present claim for service connection for sleep apnea in August 2014, or more than seven years following service separation. During a November 2016 VA examination, he told the examiner that he had a history of snoring for several years, which does not support a finding that the Veteran had been snoring since his period of active duty, which service was completed in 2007, or more than nine years prior. These facts tend to show that the Veteran's current obstructive sleep apnea had its onset after service discharge. The Veteran underwent a March 2015 VA examination, and that the examiner provided an opinion regarding the cause of the Veteran's sleep apnea in April 2015 finding that the current disability was not caused by his active duty. However, the Board determines that the April 2015 VA examiner's opinion is not probative as to the issue of the causal relationship between the Veteran's current obstructive sleep apnea and his active duty, as it is speculative. Nonetheless, in the November 2016 VA examination report, the examiner concluded that the Veteran's obstructive sleep apnea was less likely than not related to his military service. The examiner explained that the Veteran's diagnosis of sleep apnea was made eight years after the Veteran left service and that his service treatment records contained no evidence of an obstructive sleep apnea diagnosis or symptoms commonly associated with obstructive sleep apnea. The examiner stated that it would be mere speculation to state that the Veteran's obstructive sleep apnea existed during his military service. This examiner further concluded that the Veteran's sleep apnea is less likely than not due to the service-connected PTSD and that the Veteran had other risk factors for sleep apnea, including obesity and being male. The examiner further explained that the weight of the literature does not support a causal relationship with the development of sleep apnea in veterans with PTSD and that PTSD is not considered a risk factor for the development of sleep apnea. In the May 2021 Joint Motion, the parties agreed that the "March 2015" VA examiner's opinion was inadequate in so far as it did address whether the Veteran's obstructive sleep apnea was aggravated by the PTSD, and did not consider the lay evidence of record (i.e., the statements made by the Veteran and his wife) indicating that the Veteran began to experience symptoms associated with sleep apnea during his service and suggesting a relationship between the Veteran's treatment for sleep apnea and PTSD. The Board also notes that, as explained in the September 2021 Board remand, the parties appear to have erroneously mixed up the examination reports from March/April 2015 and November 2016, when finding that the medical opinion was inadequate, and appeared to be referring to the November 2016 VA examiner's opinion. The claims file also contains a September 2019 letter from a VA nurse practitioner, who reviewed the Veteran's wife's statement, which documented symptoms the Veteran's wife noticed while the Veteran was in the military. The VA nurse practitioner stated that these symptoms of tiredness, snoring, stopped breathing, and poor sleep patterns "could be suggestive" of a sleep-related breathing disorder, such as obstructive sleep apnea. Following the Board's September 2021 remand instructions for an addendum VA medical opinion, an October 2021 VA examiner opined that the Veteran' current obstructive sleep apnea was less likely than not (less than 50 percent probability) incurred in or caused by his active duty and was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected PTSD. The examiner noted that he provided these opinions after reviewing all of the available records, including the Veteran's April 2015 VA sleep study report. The examiner explained that the Veteran's sleep apnea was not diagnosed in service, but instead many years after service. The examiner noted that although the Veteran may have had sleep issues in service, given that sleep apnea was not diagnosed until after service, the examiner was unable to attribute sleep issues in service to the current sleep apnea diagnosis. The examiner further noted that sleep issues involve a wide variety of considerations with sleep apnea being just one consideration. The examiner noted that at the time of the Veteran's sleep study in April 2015, his body mass index (BMI) was above 25, which put him in either the overweight or obese category. The examiner noted that being in such weight categories was a majority cause of sleep apnea. Thus, the examiner concluded that any other causes were less likely than not the cause of the Veteran's obstructive sleep apnea. The examiner further stated that there are several cases of association of weight gain, and psychiatric and physical conditions, such as depression, PTSD, and arthritis; however, he noted this is an associative relationship and not a causal relationship. The examiner explained that weight can effectively be managed by limiting caloric intake; thus, excess weight is not due to either psychiatric or physical conditions causing decreased mobility. The examiner noted that given that the Veteran was considered obese, this factor is the majority cause of sleep apnea, and that the examiner was unable to opine whether sleep apnea would have developed if the Veteran was not obese. The examiner noted that although there are several causes of obstructive sleep apnea, if obesity is present, it is typically a majority cause. The examiner reiterated that although an associative relationship exists between psychiatric disorders, such as PTSD, and obstructive sleep apnea, per current literature, a causative relationship does not exist, and thus, it is less likely than not that an aggravation relationship exists either. To support his opinions, the examiner cited to an article and study that examined the relationship between self-reported PTSD and the risk of obstructive sleep apnea in veterans and the relationship between PTSD symptom scores and each risk factor of obstructive sleep apnea, including snoring, fatigue, and high blood pressure/BMI. The cited study and article can be found here: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4410924/. Thus, the examiner explained that although there is a strong associative relationship, as the study says: "Longitudinal studies are needed to help parse out the temporal relationship of [obstructive sleep apnea] and PTSD." Given this evidence, the Board determines that the preponderance of the evidence is against a nexus between the current obstructive sleep apnea and service and/or the service-connected PTSD. Specifically, while the Veteran and his wife are competent to report symptoms that the Veteran experienced in service and since service, they are not competent to directly link the currently-diagnosed sleep apnea to service, to include the symptoms the Veteran experienced in service, or a service-connected disability, as medical expertise is required. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of causation and/or aggravation of the obstructive sleep apnea by the Veteran's service and/or service-connected PTSD may not be competently addressed by lay evidence, and the Veteran's and his wife's opinions are not probative evidence in this regard. While the Board finds that the medical opinions provided in the April 2015 VA medical opinion and the September 2019 letter from a VA nurse practitioner are competent as to the causation of sleep apnea; it finds them of no probative value, as they are both speculative. For example, the September 2019 VA nurse practitioner provided no information on what she used to help formulate her conclusion that the Veteran's symptoms "could be suggestive" of a sleep-related breathing disorder, to include providing a rationale. Additionally, the use of "could be" is speculative and does not rise to the level of the Veteran's sleep apnea being at least as likely as not related to service. See Bostain v. West, 11 Vet. App. 124, 127-28 (1998), quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a causal relationship); see also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (a doctor's statement framed in terms such as "could have been" is not probative). Accordingly, the Board finds that the April 2015 VA medical opinion and the September 2019 VA nurse practitioner's opinion have no probative value. However, the Board determines that the November 2016 and October 2021 VA examiners' findings and opinions are highly probative evidence regarding the cause of the obstructive sleep apnea and the causal relationship between this disorder and the Veteran's period of active duty and the service-connected PTSD because of the examiners' expertise, training, education, proper support and explanations, and thorough review of the Veteran's records and self-reported symptoms. Moreover, the October 2021 VA examiner provided opinions finding the Veteran's sleep apnea was less likely than not caused by his active duty and caused or aggravated by his service-connected PTSD following a thorough review of the record, including the statements made by the Veteran and his wife and cited to medical literature to support the opinion. At the present time, there is no competent and probative evidence to weigh against the negative opinions. Thus, for all the reasons laid out above, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for obstructive sleep apnea, to include as being secondary to PTSD. Thus, as the preponderance of the evidence is against the claim, there is no reasonable doubt to be resolved, and the claim for service connection is denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Hodzic, 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.