Citation Nr: 21077348 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 15-45 233 DATE: December 29, 2021 ORDER Service connection for sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD), is denied. FINDING OF FACT Sleep apnea was not caused by, aggravated by, or attributable to, any aspect of service. Sleep apnea was not proximately caused by, or aggravated beyond its natural progression by, PTSD. CONCLUSION OF LAW The criteria for service connection for sleep apnea 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 served on active duty in the U.S. Navy from November 2004 to November 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2018, November 2019, and October 2020, the Board remanded the case for development and in the latter two occasion to ensure compliance with prior remand directives. There now has been substantial compliance with the directive. Stegall v. West, 11 Vet. App. 268 (1998). SERVICE CONNECTION The Veteran asserts that obstructive sleep apnea (OSA) was incurred in, aggravated by, or otherwise attributable to active-duty service. Alternatively, the Veteran contends that OSA was proximately caused or aggravated by PTSD. In order to establish service connection on a direct basis, the record must contain competent evidence of: (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. Saunders v. Wilkie, 886 F. 3d 1356 (Fed. Cir. 2018). In the absence of proof of a present disability there can be no valid claim. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F. 3d 1039, 1043 (Fed. Cir. 1994). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Competent lay evidence may also include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). If the evidence is competent, the Board must then determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. Secondary service connection is permitted based on aggravation; compensation is payable for the degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Evidence and Analysis Service personnel records show that the Veteran served as a Navy hospital corpsman with duty with Marine units and with service in Iraq in 2008. Service treatment records show that the Veteran was 72 inches tall and weighted 196 pounds at enlistment and 170 pounds in March 2007. Weight was not of record after a 2008 deployment or at discharge. In a September 2008 post-deployment health assessment/questionnaire, the Veteran reported that his health had been very good for the past month, the same as prior to his deployment. The Veteran indicated that he did not have trouble breathing. The Veteran did indicate that he had sought treatment at sick call for problems sleeping and feeling tired after sleeping and concentrating but that he no longer had those symptoms after the deployment. In the Veteran's separation questionnaire in September 2009, the Veteran reported that he did not experience frequent trouble sleeping. However, the Veteran did report that he experienced depression and excess worry and that he thought too much about some things and could not stop worrying. A physician completed a simplified assessment but no complete physical examination. In a February 2011 VA psychological symptoms assessment, the Veteran reported that he experienced difficulty falling asleep. A VA social worker noted the Veteran's report that he felt that he had sleep apnea, manifesting as night sweats, decreased sleep, turning, and weakness. In February 2014, the Veteran underwent a sleep study using a home sleep recording using the Carefusion T3 system. The clinician opined that the reasons for this recording were complaints of snoring, non-refreshing sleep, and excessive daytime somnolence (EDS) and diagnosed mild obstructive sleep apnea. The report shows that the Veteran was 72 inches tall, weighed 208.5 pounds, with a body mass index of 28, and the clinician advised weight loss. In May 2014, the Veteran submitted a lay statement in which he noted that OSA was associated with his previously diagnosed PTSD. The Veteran also indicated that it started after his deployment to Iraq. At present, the Veteran reported that he used a continuous positive airway pressure (CPAP) device, which inhibits normal sleeping to the device's "hissing" and discomfort of the mask. On occasion, when he removed the CPAP mask, he experienced exhaustion, sleepiness, and trouble concentrating the next day. In an associated sleep pulmonary questionnaire, the clinician noted "sleep symptoms" of snoring (2-4 nights per week); "witnessed" apneas (once a week); problems falling asleep (once a week; nocturnal awakenings (due to shortness of breath, gasping for air, choking, and noises). The clinician provided an assessment of mild OSA. In July 2014, a VA clinician provided an opinion as to the etiology of the Veteran's OSA. The clinician reviewed the Veteran's claims file and medical history. This clinician indicated that the Veteran had been granted service connection for PTSD. The clinician indicated that the Veteran's OSA is less likely than not proximately due to or the result of the Veteran's PTSD. The clinician noted that the causes of OSA are mechanical in nature, in that the muscles of the back of the throat relax. These respective muscles support the soft palate, tonsils, throat side walls, and tongue. Consequently, these "spells" of muscle relaxation occur, the airway narrows (or closes) as a person breathes in, however this process of breathing is inadequate and can produce lower levels of blood oxygenation. Moreover, the brain senses this inability to breathe and briefly rouses an impacted person from sleep to "reopen" the airway. Furthermore, a review of the applicable literature suggests that there is an "association" between sleep apnea and PTSD; however, there are no extant studies that conclude that PTSD causes sleep apnea. To the contrary studies suggest that sleep apnea itself exacerbates the symptoms of PTSD. In March 2015 VA received a lay statement from a service member who had been stationed with the Veteran. This service member report that he witnessed the Veteran snoring very loudly during their period together. Also, the service member indicated that he sometimes observed the Veteran gasping for air and coughing during periods of sleep. And, lastly, the service member recalled that the Veteran had difficulty staying awake when not actively engaged in an activity. In his March 2015 notice of disagreement (NOD), the Veteran restated his contentions concerning the association between OSA and service-connected PTSD. In June 2016, a VA clinician provided an opinion as to the etiology of the Veteran's OSA. This clinician reviewed the Veteran's claims file and medical history. This clinician indicated that the Veteran's OSA was less likely than not proximately due to or the result of the Veteran's PTSD. The clinician reported that the "architecture of the upper airway causes OSA. Stated more directly, OSA is a physical problem of the upper airway or throat area. Whereas PTSD is a mental health disability which does not cause structural (physiological changes) of either the upper airway or throat area. In January 2018, a private sleep consultant noted that the Veteran had ceased use of the CPAP device and had normal sleep quality with no apnea. The clinician noted that long face syndrome contributed to snoring and daytime sleepiness was possibly due to getting up very early several times per week. The clinician recommended discontinuing the use of the CPAP device. In a December 2018 VA treatment record, a clinician reported that the Veteran had OSA and a congenital atrioventricular (AV) defect of an underdeveloped left coronary cusp. This clinician did not provide etiological opinion as to the diagnosed OSA. In July 2019, a VA clinician provided an addendum opinion as to the etiology of the Veteran's OSA. This clinician reviewed the Veteran's claims file and provided an exhaustive medical history. The clinician found that is less likely than not that Veteran's OSA was caused by or incurred during his time in the service. Moreover, it is less likely than not that the Veteran's OSA was aggravated beyond its natural course by his service-connected PTSD. As a rationale for these negative nexus opinions, the clinician noted that, While PTSD is associated with sleep apnea, this connection is a correlation only, meaning that there is insufficient evidence to support that PTSD causes sleep apnea. [...] [When] the Veteran lost over 20 pounds, his OSA appears to have resolved. This is consistent with medical literature which [discloses] a strong link between weight loss/gain and sleep apnea. In December 2020, a VA clinician provided an addendum opinion as to the etiology of the Veteran's OSA. This clinician reviewed the Veteran's claims file and provided an exhaustive medical history. Based upon consideration of the totality of evidence, the clinician reported that it is less likely than not that OSA is etiologically related to the Veteran's active-duty service (or any event, disease, or injury in active-duty service). Furthermore, the clinician reported that OSA is less likely as not (proximately) cause by the Veteran's service-connected PTSD, tinnitus, and/or any treatment protocols for these disabilities. And, moreover, it is less likely than not that OSA was aggravated beyond its natural progression by the Veteran's service-connected PTSD, tinnitus, and/or any treatment protocols for these disabilities. As a rationale, the clinician opined that the Veteran received a diagnosis of mild OSA in 2014, 5 years after his separation from service. The evidence of record shows that the Veteran reported sleeping problems in September 2008 and checked a box in his September 2009 [separation medical history questionnaire] the Veteran reported that he did not experience frequent trouble sleeping. However, the Veteran did report that he experienced depression and excess worry. The Veteran also conveyed that random "things" caused him to worry at night and kept him [awake]. [...] When the Veteran [received] a diagnosis of [OSA] in 2014, his body mass index (BMI) was 28 with a weight of 208 pounds. As such, the Veteran's OSA is more likely related weight gain and increased BMI. OSA risk continues to increase with rising [BMI]. [A review of the medical evidence of record] reveals that the Veteran's weight fluctuated175 pounds in November 2004, 196 pounds in January 2009, and 185 pounds in March 2018 etc. (The citation to 196 pounds was not in January 2009 but rather in a January 2004 enlistment examination). Furthermore, there are no available peer-reviewed studies which link PTSD and/or tinnitus to OSA. Neither records nor studies correlate or suggest a pathophysiological relationship between PTSD and tinnitus and a "mechanical airway obstruction disorder" to include OSA. Consequently, a nexus cannot be established (on either direct, secondary, or "intermediate"/aggravation bases). VA outpatient records as recently as August 2021 show that the Veteran was again using the CPAP device. The clinician recorded a weight of 214 pounds and body mass index of 29. The Veteran (and his fellow service member) believes that his OSA was incurred in or aggravated by service. The Veteran also believes that OSA was proximately caused by, or aggravated beyond its natural progression by, service-connected PTSD. The Board has considered the Veteran's sincere beliefs; however, upon review of the evidence of record, the Veteran does not have the specialized psycho-medical knowledge to render an opinion as to etiology, proximate cause, or aggravation. Jandreau, 492 F. 3d 1372; Kahana, 24 Vet. App. 428. No competent VA clinician provided a positive nexus opinion for OSAon either a direct or secondary basis. These clinical professionals scrutinized the evidence of record and accessed the Veteran's medical history. Although they presented different rationales to support their opinions, each clinician based such in evidence, medical finding, and/or peer-reviewed studies. Consequently, this competent corpus of opinions warrants substantial probative weight. The Board considered the statement by the fellow Sailor in February 2015 that he observed snoring and interrupted breathing during deployment. The Board places less weight on this report as it is not consistent with the service records that show only daytime sleepiness and then only during the deployment. While the present disability requirement exists for OSA, the weight of evidence is against establishing an in-service incurrence or aggravation. As discussed above, the most competent clinical evidence of record fails to disclose that there was any incurrence of OSA in service. Saunders, 886 F. 3d 1356. Moreover, the weight of evidence, as articulated above, is against establishing service connection on a secondary basis. No clinician of record opined that OSA was proximately caused by or aggravated beyond its natural progression by the Veteran's service-connected PTSD. Allen, 7 Vet. App. 439. Therefore, the weight of competent, credible, and consistent evidence is against granting the Veteran's service connection claim and there are no doubts to be resolved. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. J. Komins, 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.