Citation Nr: 21077183 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 14-05 348 DATE: December 28, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) to include as secondary to service-connected anxiety disorder is denied. FINDING OF FACT The evidence fails to establish an etiological relationship between the Veteran's OSA and his active service or his service-connected anxiety disorder. CONCLUSION OF LAW OSA was not incurred in or aggravated by service, nor is it proximately due to or the result of his service-connected anxiety disorder. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1978 to November 1998. In March 2016, a Travel Board hearing was held before a Veterans Law Judge (VLJ) who is no longer employed by the Board. The Veteran was offered a hearing before another VLJ and declined in October 2017 and March 2021 correspondence. In January 2018, September 2019, and May 2021 this matter was remanded for additional development Most recently, in May 2021, the Board remanded the Veteran's claim for entitlement to service connection for obstructive sleep apnea and an additional claim for entitlement to service connection for a low back disability. While on remand, the RO granted entitlement to service connection for degenerative arthritis with intervertebral disc syndrome and scoliosis of the thoracolumbar spine in a July 2021 rating decision. This issue is no longer before the Board. A September 2021 supplemental statement of the case was most recently issued and the claim is once again before the Board. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Service connection is also warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. Finally, 38 U.S.C. § 1154(a) requires that VA give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, 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); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). 1. Entitlement to service connection for obstructive sleep apnea (OSA) to include as secondary to service-connected anxiety disorder. The Board will first consider this claim on a secondary service connection basis. The Veteran essentially contends that his OSA is due to his service-connected anxiety disorder. Numerous examinations and opinions were obtained. An August 2012 VA examination and opinion were completed. The examiner noted that PTSD does not cause OSA so OSA is less likely as not related to PTSD and more likely as not related to his weight problem. The examiner stated that there is no medical literature that states PTSD causes OSA. As noted in the initial January 2018 BVA Remand, this opinion did not address the Veteran's anxiety disorder diagnosis, but rather PTSDa diagnosis that is not part of his service-connected disability. Moreover, the VA examiner did not address secondary aggravation as required by 38 C.F.R. § 3.310(b). This opinion is accorded little probative value. A December 2019 VA examination and opinion were obtained. The examiner initially noted that the Veteran had a history of PTSD and there is some link between the two conditions. The examiner noted that PTSD is well known to affect shuteye and other sleep disturbances from flashbacks, excessive snoring and interruption breathing. It is therefore at least as likely as not that the claimed OSA was aggravated beyond its natural progression due to his PTSD. As the Board previously noted, however, the Veteran is service-connected for an anxiety disorder, not PTSD. Little probative value is thus accorded to this medical opinion. An addendum September 2020 opinion was obtained. The examiner stated that after reviewing the Veteran's medical history it is less likely as not that the claimed sleep apnea was aggravated by his anxiety disorder because there is insufficient information to create a nexus between the two conditions. A January 2020 VA medical opinion was subsequently obtained. The examiner noted the Veteran's service-connected anxiety disorder. The examiner noted that OSA is a condition that is diagnosed when there is an obstruction to the part of the airway when sleeping. The examiner stated that OSA can cause depression and anxiety, fatigue, and feeling unrested in the mornings due to lack of proper oxygenation through episodes of apnea during the night. The examiner stated that OSA can also cause leptin resistance which can make a patient overeat and thus worsen their OSA. The examiner noted that the Veteran's OSA had been diagnosed in 2009 and he uses a CPAP. The examiner noted that the Veteran had been diagnosed with obesity and chronic back pain and concluded that the Veteran's OSA was due to his obesity. Several medical studies were provided. The examiner opined that the Veteran's OSA was not at least as likely as not aggravated beyond its natural progression by his service-connected disability. A September 2020 addendum opinion was obtained. The examiner stated that sleep apnea is caused by a structural obstruction to the respiratory passage. The examiner noted that nonrestorative sleep and reduced oxygenation can lead to depression, fatigue, and increased daytime sleepiness. She noted that sleep apnea is often seen in obesity as when the patient lies down, the abdomen presses upward and obstructs the breathing. The examiner stated that anxiety disorders have no effect on a structural condition like sleep apnea and sleep apnea has not been aggravated by an anxiety disorder beyond its natural progression. She continued stating that there are no records showing sleep apnea is worsened by anxiety and the absence of any records linking or creating a nexus between the two disorders serves as a validation of her point. A June 2021 VA opinion was subsequently obtained. The examiner stated that psychological conditions do not cause or aggravate OSA. He noted that this is established medical knowledge and practice. He noted that cause and aggravation have not been established in the current, widely accepted, peer-reviewed literature, including Up-to-Date, a professional medical resource wherein one may access current professional treatises and studies. The examiner noted that there is no evidence of an eating disorder attributable to the Veteran's anxiety. He stated that obesity is multifactorial, including calorie intake, caloric consumption, basal metabolic rate, hereditary, attitudes towards exercise and other nonspecific factors. He noted that it is unlikely that anxiety caused obesity or served as a waypoint for developing OSA. He concluded his opinion stating that it is less likely than not that the Veteran's OSA is due to, incurred in or has been aggravated by psychological conditions, including anxiety or PTSD. He rationalized that there are no anatomic or physiologic mechanisms by which they can do so and it is unclear what aggravation the Veteran is claiming. Finally, an addendum opinion was obtained in September 2021. The VA examiner noted that psychological conditions do not cause or aggravate OSA. She stated that this is established medical knowledge and practice. She opined that it is less likely than not that the Veteran's OSA is due to, incurred in, or aggravated by being trained to be a light sleeper, abuse, mistreatment, vehicle accidents or falling tools hitting his face and nose. She stated that there is no anatomic or physiologic mechanisms by which they can do so; rather, sleep apnea is caused by anatomical variations in the craniofacial features and or neck. Therefore, she concluded that a nexus has not been established. The Board finds that the examinations together are adequate for evaluation purposes. Significantly, the examiners considered the Veteran's history, and addendum explanations were provided when clarification was needed. Together, these opinions provide evidence against this claim, making it less than likely such a connection exists. The Board further finds compelling the fact that no probative medical evidence is of record to support a conclusion that the Veteran's obstructive sleep apnea was caused or aggravated by his service-connected acquired psychiatric disability. The Board has also considered the statements made by the Veteran relating his sleep apnea to his service-connected disability. The Board has considered the Veteran's general statement, on his substantive appeal, stating that due to exposure to radiation in 1986 his thyroid gland was affected and caused him to gain weight, which led to sleep apnea. The Board notes in this regard that the Veteran is not service-connected for his thyroid. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of obstructive 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) (lay persons not competent to diagnose cancer). Therefore, after weighing the pertinent evidence of record, the Board concludes that the preponderance of the evidence is against entitlement to service connection for OSA, as secondary to his service-connected anxiety disorder. The Board also considers the theory of entitlement to service connection for OSA on a direct basis. Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). However, the evidence does not show a causal relationship between the claimed disorder and any other incident of active service, as will be discussed below. The Veteran asserts that he suffers from OSA related to service. The Veteran has now been diagnosed with OSA. Service treatment records reflect no treatment for sleep apnea. A June 1998 separation examination did not note a diagnosis of sleep apnea. In a report of medical history completed at that time the Veteran denied experiencing or ever experiencing frequent trouble sleeping. In an August 1998 General Medical Examination, there was no mention of issues with sleeping. The Board has also considered the statements of the Veteran regarding continuity of symptoms since service. See for example November 2012 Notice of Disagreement. However, the Federal Circuit has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). As the Veteran's obstructive sleep apnea is not listed under 3.309(a), continuity of symptomatology is simply not applicable in the present case. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board nevertheless notes that treatment records do not note sleep issues until around 2012 when it was noted that the Veteran had been diagnosed with obstructive sleep apnea in 2010, many years following separation from service. See August 2012 VA Examination. The Board next considers that service connection may be granted when the evidence establishes a medical nexus between active duty service and current complaints. The service and post-service evidence provide particularly negative evidence against this claim. The Veteran was initially provided an August 2012 VA examination. The Veteran was diagnosed with obstructive sleep apnea, initially diagnosed in 2010. The examiner did not address whether the Veteran's obstructive sleep apnea was related to service. An October 2012 VA sleep study was completed. No opinion was provided. A December 2019 VA medical opinion was obtained. The examiner opined that it is less likely than not that the Veteran's OSA is incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that after reviewing the Veteran's medical history, it is less likely than not that the currently diagnosed sleep disorder, including OSA, is etiologically related, in whole or in part, to the Veteran's active service. The examiner stated that this was because there was nothing mentioned about the history of a sleep disorder or treatment during in-service. An additional opinion was obtained in January 2020. The examiner opined that the claimed condition is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. Rationale for this opinion focused more on a secondary service connection claim and little probative value is accorded to this opinion. A June 2021 VA medical opinion was also obtained. The examiner opined that the claimed condition is less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that there was no evidence of OSA in service. He stated that the separation exam is negative for sleep conditions, and these exams are notably thorough and include a history, physical and veteran-answered report of medical history, which was specifically negative for frequent trouble sleeping. He noted that OSA was not diagnosed until the sleep study in 2010. The examiner noted that it is unlikely an individual with OSA developing in service could have endured a time span of 12 years without requiring evaluation or care. The examiner noted that any lay reports of daytime somnolence or fatigue, fitful sleep, snoring, movements during sleep, insomnia, difficulty falling asleep, easy awakening etc. are general symptoms and may be attributed to multiple causes. He noted that the Veteran denied trouble sleeping at separation. An additional opinion was obtained in September 2021. The VA examiner noted that there was no evidence of OSA while in service and the separation examination is negative for sleep conditions. The examiner noted that the report of medical history was specifically negative for frequent trouble sleeping. She noted that OSA was not diagnosed until a sleep study in 2010. The examiner noted that it is unlikely an individual with OSA developing in service could have endured a 12 year time span without requiring evaluation or care. She noted that there is no literature that states that being trained to be a light sleeper can cause sleep apnea and that sleep apnea is caused by anatomical variations in the craniofacial features or neck. She stated that there is no evidence to suggest that being trained as a light sleeper causes airway restriction. The examiner also noted that medical literature also fails to correlate abuse, mistreatment, vehicle accidents, or falling tools hitting his face and nose to developing sleep apnea related to service. The examiner reiterated that any lay reports of daytime somnolence or fatigue, fitful sleep, snoring movements during sleep, insomnia, difficulty falling asleep, easy awakening, etc. are general symptoms and may be attributed to multiple causes. She emphasized that the Veteran denied frequent trouble sleeping at separation. Additionally, consistent with the examiner's opinion, post-service treatment records continue to reflect complaints of sleep problems, but the reports make no reference to a causal relationship to service or any event of service. The Board has closely reviewed the medical and lay evidence in the Veteran's claims file and finds no evidence that may serve as a medical nexus between the Veteran's service and his current obstructive sleep apnea. Although the Board recognizes that the Veteran is competent to report trouble sleeping, and general feelings of tiredness, the evidence in this case clearly demonstrates that his current obstructive sleep apnea developed many years following separation from service. The weight of the evidence of record simply does not support a finding that his obstructive sleep apnea is in any way related to symptomatology in service. In any event, the probative value of the statements of the Veteran's own contentions are outweighed by the probative opinions of record. The Board thus concludes that the preponderance of the evidence shows that the Veteran's obstructive sleep apnea did not manifest during service, is not otherwise etiologically related to service, and was not caused or aggravated by his service-connected anxiety disorder. Therefore, the preponderance of the evidence is against the claim for service connection for obstructive sleep apnea, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. M. Clark, 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.