Citation Nr: 21074630 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 16-26 339 DATE: December 15, 2021 ORDER Service connection for obstructive sleep apnea, to include as due to contaminated water at Camp Lejeune and secondary to service-connected depressive disorder, is denied. FINDING OF FACT The Veteran's obstructive sleep apnea is not due to or a result of his active military service, his exposure to contaminated water at Camp Lejeune, and his service-connected depression did not cause or aggravate his sleep apnea. CONCLUSION OF LAW The criteria for service connection for sleep apnea, on a direct and secondary basis, are not met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Marine Corps from October 1986 to October 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision by the Philadelphia, Pennsylvania Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran timely filed a notice of disagreement (NOD) in April 2015 and substantive appeal in June 2016. In December 2018, the Board granted claims for service connection for neurosarcoidosis, a bilateral foot disability, an acquired psychiatric disorder and denied service connection claims for bilateral hearing loss and high cholesterol. The claims for service connection for a bilateral knee disability, diabetes mellitus, and sleep apnea were remanded for further development. In a January 2021 rating decision, service connection for diabetes mellitus was granted. In a July 2021 rating decision, service connection for a bilateral knee disability was granted. The grants constituted a full grant of the benefits sought on appeal with respect to those issues and they are no longer in appellate status. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for a claimed disability 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). 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) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a). As applicable to this case, a veteran who had no less than 30 days (consecutive or nonconsecutive) of service at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987 shall be presumed to have been exposed during such service to water contaminated with the volatile organic compounds (VOCs) of trichloroethylene (TCE), perchloroethylene (PCE), benzene and vinyl chloride, that were in the on-base water-supply systems located there during such service, unless there is affirmative evidence to establish that the individual was not exposed to contaminants in the water supply during that service. 38 C.F.R. § 3.307 (a)(7). Military records reflect that the Veteran served at Camp Lejeune during the applicable time period and VA has conceded the Veteran's exposure to contaminated water while stationed at Camp Lejeune during his active service. Service connection may also be granted on a presumptive basis for certain diseases associated with exposure to contaminants (defined as the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE or PERC), benzene, and vinyl chloride) in the on-base water supply located at Camp Lejeune, even though there is no record of such disease during service, if they manifest to a compensable degree at any time after service, in a veteran, former reservist, or a member of the National Guard, who had no less than 30 days (consecutive or nonconsecutive) of service at the United States Marine Corps Base Camp Lejeune and/or Marine Corps Air Station New River in North Carolina, during the period beginning on August 1, 1953 and ending on December 31, 1987. Diseases associated with exposure to contaminants in the water supply at Camp Lejeune include: Kidney cancer, liver cancer, non-Hodgkin's lymphoma, adult leukemia, multiple myeloma, Parkinson's disease, Aplastic anemia and other myelodysplastic syndromes; and, bladder cancer. 38 C.F.R. § 3.307 (a)(7); 3.309 (f). This presumption may be rebutted by affirmative evidence to the contrary. Id. The Veteran does not have a diagnoses of any of the diseases associated with exposures to contaminants in the water supply at Camp Lejeune. Although the Veteran has not established entitlement to service connection on any of the presumptive bases noted above, he is not precluded from establishing service connection on a direct basis. See 38 U.S.C. § 1113 (b); 38 C.F.R. § 3.303 (d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). Service connection for obstructive sleep apnea (OSA), to include as due to contaminated water at Camp Lejeune (CWCL) and secondary to service-connected depressive disorder The Veteran contends that his diagnosed OSA is due to his active military service, his CWCL exposure, or secondary to his service-connected depressive disorder. Service treatment records (STRs) are silent for a diagnosis, complaint, symptoms, or treatment for a sleep related disorder. Post-service, VA treatment records reflect that the Veteran was diagnosed with OSA in 2014 and placed on a continuous positive airway pressure (CPAP) therapy. In July 2018 correspondence submitted from the Veteran's attorney, he argued that research has shown that psychiatric disorders, such as depression, are commonly associated with OSA. An article from Current Psychiatry Reports stated that complaints of disrupted sleep are very common in patients suffering from depression, and they are listed among the diagnostic criteria for this disorder. Each physician should be aware that some antidepressants may worsen or induce primary sleep disorders like restless leg syndrome, sleep bruxism, REM sleep behavior disorder, nightmares, and sleep apnea which may result from antidepressant-induced weight gain. Another article reported that after a study on a large cohort, it was concluded that sleep apnea is associated with a higher prevalence of psychiatric comorbid conditions in Veterans Health Administration beneficiaries. This association suggests that patients with psychiatric disorders and coincident symptoms suggesting sleep-disordered breathing should be evaluated for sleep apnea. An April 2020 VA examination report confirmed the Veteran's diagnosis of OSA. The clinician opined that the condition claimed was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As rationale, he reported that STRs are silent for an OSA diagnosis and management during his active duty. He reported that post discharge, there is no evidence for the diagnosis and management for OSA and specifically non proximate to his military service/discharge 29 years ago. The clinician also found that the condition claimed is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected condition. As rationale, he reported that to date, there is no study or evidence to support the claim for the contaminated drinking water at Camp Lejeune, as the causative etiology for his OSA. He reported that it is not related to his psychiatric disorder. An August 2020 VA addendum opinion reflects that the clinician found that a diagnosis of OSA is confirmed and is less likely than not caused by or a result of the Veteran's exposure to CLCW. As rationale, she reported that sleep apnea is a potentially serious sleep disorder in which breathing repeatedly stops and starts. The main types of sleep apnea include OSA, the more common form that occurs when throat muscles relax. These muscles support the soft palate, the triangular piece of tissue hanging from the soft palate (uvula), the tonsils, the side walls of the throat and the tongue. When the muscles relax, the airway narrows or closes with breathing in. Minimal air is inhaled which can lower the oxygen level in your blood. The brain senses the inability to breathe and briefly rouses one from sleep so that the airway can reopen. This awakening is usually so brief that it is often not remembered. Snorting, choking, or gasping can also occur. This pattern can repeat itself five to 30 times or more each hour, all night, impairing one's ability to reach the deep, restful phases of sleep. The factors that increase the risk of this form of sleep apnea include excess weight, neck circumference, a narrowed airway, being male, age, family history, use of alcohol, sedatives or tranquillizers, smoking, and nasal congestion. The Agency for Toxic Substances and Disease Registry (ATSDR) website on health effects linked with solvent exposure at Camp Lejeune does not identify sleep apnea as a reported health problem associated with solvent exposure. A cohort of 2,050 male and 1,924 female workers monitored for occupational exposure to trichloroethylene, tetrachloroethylene, or 1,1,1-trichloroethane were followed up for cancer incidence in 1967 to 1992. The study did not show an increase in OSA. She noted that the Veteran had multiple medical problems when he was diagnosed with OSA at the age of 47. His risk factors included obesity. He had a history of smoking tobacco (one pack per week) which he quit in 1995 and long term and current use of marijuana. He has a history of heavy alcohol use and quit in 1995. Studies evaluating solvent exposure and the development of OSA are not well supported. The ATSDR assessment on the drinking water contaminates at Camp Lejeune does not list OSA as a health effect. The levels of solvents were well below those identified in the studies. It is her opinion that his OSA is less likely as not caused by or related to his exposure to CLCW given the following: obesity; history of smoking; history of heavy alcohol use; gender (male); exposure period of 358 days at levels below those in the studies; latency of diagnosis (25 years); and limited scientific evidence. She cited medical treatise in support of her rationale. A December 2020 VA opinion reflects that the clinician found that the condition claimed is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected condition. As rationale, he reported that OSA is a sleep disorder that results from repetitive obstruction/collapse of the upper airway, brought about by narrowing of the respiratory passages. This results in a substantially reduced or complete cessation of airflow despite breathing efforts. To date, there is no study or evidence to relate a psychiatric disorder as a causative etiology or exacerbating factor for OSA. The Journal of Clinical Sleep Medicine reported that OSA have been found to have a high prevalence of comorbid psychiatric conditions, e.g. mood disorders. These associated psychiatric conditions are comorbid pathology and not a causative etiology for OSA, which is a very physical pathology versus a mental pathology. There is no study or evidence to support the claim for the contaminated drinking water at Camp LeJeune as the causative etiology for OSA. The VA has not released any documentation to relate OSA to the contaminated water at Camp LeJeune. The Veteran has a BMI of 40 noted several months ago. Chronic obesity is a common cause of OSA. In addition, he has adrenal insufficiency, panhypopituitarism, hypogonadism, and diabetes mellitus. An additional December 2020 VA opinion reflects that the clinician reported that she reviewed the articles submitted by the Veteran's attorney. She reported that to date, there is no study or evidence to relate a psychiatric disorder as a causative etiology or exacerbating factor for OSA. While the Journal of Clinical Sleep Medicine has reported that OSA has been found to have a high prevalence of comorbid psychiatric conditions, e.g. mood disorders. These associated psychiatric conditions are comorbid pathology, not causative etiology for OSA, which is a very physical pathology versus a mental pathology. An August 2021 VA clinician reported that it is my medical opinion that the Veteran's obesity is less likely than not (50 percent or less probability) caused by his service-connected disabilities. As rationale, he reported that obesity is a disease caused by caloric intake that exceeds calories burned. The Veteran's multiple service-connected disabilities will not cause him to become obese, only excess intake of calories will. The Veteran has been diagnosed with OSA. Obesity is a risk factor for the development of OSA but has not been proven to cause OSA. Upon review of the evidence of record, service connection for OSA on a direct and secondary basis, as well as due to CWCL exposure, is not warranted. Initially, as noted above, the Veteran has a current diagnosis of OSA confirmed by sleep study results. As the current disability requirement has been met, the question remains as to whether there is a nexus between the disability and service, to include CWCL exposure, or whether his service-connected depression caused or aggravated his OSA. The VA medical opinions as a whole found that the Veteran's sleep apnea was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness to include CWCL exposure. Additionally, the VA clinicians found that the diagnosed sleep apnea was less likely than not (less than 50 percent probability) proximately due to or the result or aggravated by his service-connected depression. Specifically, the April 2020 VA clinician noted the lack of OSA during service and the fact that it was diagnosed more than 20 years. The August 2020 VA clinician detailed her rationale based on a thorough review of the file and medical literature and found that the Veteran's OSA was not likely caused by his CWCL exposure but was likely due to obesity; history of smoking; history of heavy alcohol use; male gender; exposure period of 358 days at levels below those in the studies; latency of diagnosis (25 years); and limited scientific evidence. Finally, the December 2020 VA clinician explained why he found that the Veteran's OSA was not caused or exacerbated by the Veteran's service-connected depression. He explained that his depressive comorbid pathology and not a causative etiology for OSA, which is a very physical pathology versus a mental pathology. Another VA medical opinion specifically addressed the articles submitted on behalf of the Veteran. The December 2020 VA clinician specified that while the Journal of Clinical Sleep Medicine reported that OSA has been found to have a high prevalence of comorbid psychiatric conditions, these associated psychiatric conditions are comorbid pathology, not causative etiology for OSA. She also linked the Veteran's OSA to his obesity. Finally, since one of the articles submitted from the Veteran's attorney reflects that sleep apnea which may result from antidepressant-induced weight gain, an opinion addressing obesity was obtained. The August 2021 VA clinician explained what causes obesity, excess caloric intake, and found that the Veteran's multiple service-connected disabilities did not cause him to become obese. As the clinicians explained the reasons for their conclusions based on an accurate characterization of the evidence of record, their opinions are entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). To the extent that the Veteran, including through his representative, has opined that his OSA is related to service and/or secondary to his service-connected depressive disorder, lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In this case, the Veteran's contentions as to the etiology of his OSA relate to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Compare Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (witness capable of diagnosing dislocated shoulder). The Veteran's statements are therefore not competent in this regard. To the extent that these lay statements are credible, the Board finds the specific, reasoned opinion of the VA clinicians to be of greater probative weight than the Veteran's more general lay assertions. With regard to the medical literature submitted by the Veteran, medical article and treatise evidence may suffice to establish nexus in instances where "standing alone, [it] discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion." Sacks v. West, 11 Vet. App. 314, 317 (1998). However, treatise materials are generally not specific enough to show nexus. Id. Moreover, medical opinions directed at specific patients generally are more probative than medical treatises. Herlehy v. Brown, 4 Vet. App. 122, 123 (1993) (noting that medical opinions directed at specific patients generally are more probative than medical treatises). In this case, regardless of the specificity of the treatise evidence submitted, its probative value is outweighed by the specific, reasoned opinion of the December 2020 VA clinicians. See Nieves-Rodriguez, 22 Vet. App. at 304 (most of the probative value of a medical opinion comes from its reasoning. Cf. Bailey v. O'Rourke, 30 Vet. App. 54, 60 (2018) (a medical opinion that relies on the absence of general medical literature supporting nexus without discussing the specific facts of the case is inadequate). Notably, the medical articles did not address causationnone of the articles reported that psychiatric disabilities can cause OSA. The articles only addressed associated symptoms with OSA and psychiatric disabilities. For the foregoing reasons, the preponderance of the evidence is against the claim for sleep apnea on a direct and secondary basis. The benefit of the doubt doctrine is therefore not for application and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. B. G. LeMoine Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laroche, N. 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.