Citation Nr: 21074751 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 16-44 743 DATE: December 16, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (sleep apnea), to include as secondary to service-connected disabilities is denied. FINDING OF FACT The Veteran's sleep apnea did not manifest during service; is not shown to be causally or etiologically related to an in-service event, injury, or disease; and is not shown to be caused or aggravated by service-connected disabilities (i.e., medications taken for treatment thereof). CONCLUSION OF LAW The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from January 1985 to May 1985, and from April 1988 to August 2008. This matter came before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). By way of background, in August 2019 and July 2021, the Board remanded the issue of entitlement to service connection for sleep apnea for further evidentiary development. The issue is once again before the Board. Service Connection Generally, to establish service connection a veteran must show: "(1) the existence of a present disability; (2) 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). Service connection may also be granted 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. The evidence must 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. See also Allen v. Brown, 7 Vet. App. 439, 448-49 (1995). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 1. Entitlement to service connection for sleep apnea, to include as secondary to medications from service-connected disabilities, is denied. After a review of the record, the Board finds that the Veteran does not meet the criteria for service connection as the preponderance of the evidence supports a finding that the Veteran's sleep apnea is less likely than not related to an in-service event, injury, or disease. At the outset, the Board notes that the November 2019 VA examiner diagnosed the Veteran with sleep apnea. As such, the first element of service connection is met. Concerning the second element of service connection (in-service incurrence or aggravation of a disease or injury), the Board finds that the Veteran has no sleep apnea related in-service event, injury, or disease. A review of the service treatment records (STRs) shows that he had normal nose, mouth, and throat with no complaint of nose or throat trouble or having frequent trouble sleeping in the October 1984 enlistment examination, February 1988 enlistment examination, December 1991 examination, and a January 1995 examination. In a September 1997 STR, he endorsed having frequent trouble sleeping. However, in a September 2001 examination he again denied having any throat trouble or having frequent trouble sleeping. In the November 2019 VA examination, he reported that the onset of his sleep apnea was in 2009. In his notice of disagreement, he claimed that he was informed by his sleep specialist that his condition can be attributed to his long-term use of pain management medications which are known to cause difficulty breathing. See October 2014 NOD. As the Veteran did not state that his sleep apnea manifested in service or that that it is etiologically related to service, the Board finds the second element of service connection has not been met. The Veteran was afforded a VA examination in November 2019 with an addendum medical opinion in January 2021. In the November 2019 VA examination, the examiner diagnosed the Veteran with obstructive sleep apnea. He reported that the onset of his sleep apnea was in 2009 when he had difficulty breathing while sleeping. The examiner opined that his sleep apnea is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that after reviewing medical records there is not enough evidence to support his claim. There is a lack of complaints, diagnosis, or treatment for sleep apnea during service. The examiner also opined that his sleep apnea is less likely than not proximately due to or the result of his service-connected disabilities. The examiner explained that after reviewing medical literature, opioid use such as tramadol increases the risk for sleep-related disorders in a dose-dependent fashion. However, there is no established connection that prescription medications cause sleep apnea. Sleep apnea is characterized by recurrent, functional collapse of the airway causing reduced or complete cessation of airflow despite ongoing breathing efforts. Risk factors include age, being male, excess weight, narrowed airway, and smoking. Therefore, his sleep apnea is less likely than not proximately due to or the result of the Veteran taking prescription medication for long-term pain management such as tramadol and meloxicam for service-connected spine disabilities. The examiner also noted that he is unable to establish a baseline of severity as there are insufficient records to do so. The examiner noted that the STRs do not reflect increases manifestations beyond that of sleep apnea natural progression. In the July 2021 VA addendum medical opinion, the same examiner opined that the Veteran's sleep apnea is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that there is insufficient evidence to support his claim. There is lack of complaints, diagnosis, or treatment for sleep apnea during service. The examiner also opined that his sleep apnea is less likely than not proximately due to or the result of his service-connected disabilities. The examiner noted that in the February 2021 VA examination for a psychiatric disability he was diagnosed with chronic pain and he was subsequently service connected for depressive disorder due to his chronic pain. Although it is unclear if there is a true depressive disorder, given the timeline of diagnoses, his sleep apnea was diagnosed prior to his depressive disorder. Sleep apnea is characterized by recurrent decreased nocturnal airflow intake due to collapse of the velopharyngeal and/or oropharyngeal airway and relaxation of upper airway muscles. Although there is documented and prevalent comorbidities of sleep apnea in mental health disorder such as PTSD and depression, further research is required to establish pathophysiological mechanisms between the disorders. His records and clinical literature do not suggest a correlation between his sleep apnea and mental health disorder. He clarified his prior medical assessment and opined that the Veteran's sleep apnea is less likely as not aggravated beyond its natural progression. The examiner explained that the post service records and records following the initial diagnosis of sleep apnea do not reflect increase manifestations beyond that of sleep apnea's natural progression. He further explained that sleep apnea is caused by many factors to include, but not limited to anatomical abnormalities (obesity, redundant tissue in the soft palate, enlarged tonsils or uvula, low soft palate, large or posteriorly located tongue), as well as neuromuscular disorders, and alcohol or other sedative use before bedtime. In any case, the Veteran's statements and history of his medical condition are considered in the timeline of onset. There is no medical reason found in records to suggest his recollection of symptoms during and after service may be inaccurate. However, in this case based on review of the available medical records, the Veteran's statements are inconsistent with the documentations of onset. The examiner concluded by noting that opinions for secondary basis were made based on medical knowledge and clinical literature reviewed. In contrast, in support of his claim, the Veteran submitted an article regarding chronic pain primer and impaired sleep. See October 2015 Correspondence. The Board affords little to no probative value to this article as the article presented general information and thus holds little probative value as to whether the Veteran's service-connected disabilities is etiologically related to, and/or aggravated by, his sleep apnea. Further, impaired sleep does not necessarily mean sleep apnea. As the term is ambiguous the Board affords little to no probative value to the medical article. The Board finds that the November 2019 and January 2021 VA examiner's opinions are most probative because the examiner thoroughly reviewed and discussed the relevant evidence, considered the contentions of the Veteran, and provided thorough supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Additionally, the records show that the Veteran was formally diagnosed with sleep apnea in February 2012, about four years after service. See October 2014 Medical Treatment Record Non-Government Facility. In a December 2011 private treatment record, he reported that for the past two years he has only slept about four to five hours per day. As such, his earliest indication of sleep apnea was in 2009, a year after his separation. He did not claim that his sleep apnea or symptoms of sleep apnea manifested in service. Moreover, even in the November 2019 VA examination, the Veteran reported that he has had sleep apnea since 2009. As such, his sleep apnea did not manifest in service. The examiner goes on to explain that sleep apnea is characterized by recurrent decreased nocturnal airflow intake due to collapse of the velopharyngeal and/or oropharyngeal airway and relaxation of upper airway muscles. Although there is documented and prevalent comorbidities of sleep apnea in mental health disorder such as PTSD and depression, further research is required to establish pathophysiological mechanisms between the disorders. Further, the examiner explained that there is no established connection of prescription medications causing sleep apnea. Accordingly, the Board finds that the VA examiner's opinion is competent and persuasive and assigns it high probative value. The Board has considered the Veteran's statements that his sleep apnea is due to his service-connected disability. However, the Board finds that the Veteran is not competent to link the cause of his sleep apnea to his service-connected disability as he lacks the requisite medical and technical expertise. As this is a medical matter, requiring medical training and expertise, the Board affords the Veteran's statements little probative value. Jandreau v. Nicholson, 492 F.3d. 1372 (2007); see Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). (Continued on the next page) In sum, the criteria for service connection for sleep apnea have not been met. The evidence does not show that the Veteran's sleep apnea is etiologically related to an in-service event, injury, or disease or a service-connected disability. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Thus, the claim is denied. G. Jackson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Noh, 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.