Citation Nr: 21005314 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 14-18 116 DATE: February 1, 2021 ORDER Entitlement to service connection for obstructive sleep apnea, to include as a result of an undiagnosed illness or as secondary to a service-connected disability, is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s diagnosed obstructive sleep apnea (OSA) is related to his active service or was caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for OSA, to include as a result of an undiagnosed illness or as secondary to a service-connected disability, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1995 to July 1995 and from January 2003 to March 2004. This current matter returns to the Board of Veterans’ Appeals (Board) following completion of development ordered in Remands dated in December 2015, May 2018, and November 2019. Those Remands are incorporated herein by reference. Service connection for obstructive sleep apnea, to include as the result of an undiagnosed illness or as secondary to a service-connected disability The Veteran contends that his diagnosed OSA began during, or is otherwise related to, his active service—or, alternatively is secondary to a service-connected disability. Unfortunately, the Board finds that the preponderance of the evidence does not support the grant of service connection for this disability. 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. 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); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). 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). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” Continuity of symptoms after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be established for any disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. To prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). On VA examination in July 2012, the examiner confirmed that the Veteran had been diagnosed with obstructive sleep apnea (OSA). The examiner then opined that the Veteran’s OSA was less likely than not related to his active service, including his deployment during the Gulf War. The examiner explained that OSA is a commonly occurring illness in the general population and that there was no evidence of a higher incidence of OSA among Veteran’s who served in the Gulf War. Thus, the examiner concluded that the Veteran’s OSA was less likely resultant from environmental hazard exposure during deployment. In a December 2012 statement, the Veteran’s spouse described the Veteran’s snoring and gasping for breath during sleep as starting after he returned from his deployment in Iraq. Similarly, three fellow servicemen submitted statements that the Veteran began snoring during their time in Iraq. In his Appellate Brief dated in October 2015, the Veteran argued that his OSA was linked to his service-connected posttraumatic stress disorder (PTSD). Pursuant to an initial Board Remand in December 2015, the Veteran underwent a VA examination in April 2016. At that time, the Veteran reported that he knew he snored, but that it worsened during his deployment and continued to disturb his sleep after his return from overseas. In the accompanying medical opinion, the examiner noted that, despite the Veteran’s spouse stating that she noticed loud snoring and gasping for breath during sleep, the Veteran's medical record is silent for sleep concerns from 2005 through 2011. The examiner explained that the reported snoring noted on active duty is not sufficient to indicate onset of the Veteran's OSA. Thus, the examiner concluded that it is less likely than not that the Veteran's OSA had its clinical onset in service. The examiner explained that the physical examination and medical records indicate the Veteran has not had optimal treatment for allergic rhinitis, including a nasal steroid spray. A typical CPAP mask opens up the pharyngeal airway allowing for better air entry through the mouth, with minimal contribution from nasal passages. Although a nasal CPAP mask may not be an option for this Veteran due to congestion, it could be, after trying other treatment options for his allergic rhinitis symptoms. Thus, it is less likely than not that the Veteran’s service connected allergic rhinitis has aggravated or permanently worsened the Veteran's OSA. In addressing the Veteran’s contention that his OSA was caused, or aggravated, by his PTSD, the examiner described relevant research that found that, although several sleep disorders can be highly prevalent in PTSD patients—and because sleep apnea is associated with a higher prevalence of psychiatric comorbid conditions in veterans, persons with PTSD had no objective evidence for increased incidence of clinically relevant sleep disturbances such as sleep apnea. Therefore, the examiner concluded that it is less likely than not that the Veteran’s sleep apnea is due to, or has been aggravated beyond natural progression by, his service-connected PTSD. Pursuant to the May 2018 Board Remand, an additional medical opinion was obtained. This opinion—dated in January 2019 agreed with the prior examiner’s findings, which indicated that it was less likely than not that the Veteran’s OSA was caused, or aggravated beyond its natural progression, by his service connected conditions. In his July 2019 Brief, the Veteran argued that his OSA was due to undiagnosed illness. He believes that, as the studies referenced by the VA medical opinions were not conclusive, reasonable doubt should be found in his favor. In this regard, the Board notes that the Veteran’s obstructive sleep apnea has been diagnosed. Following the November 2019 Board Remand, an additional VA medical opinion was obtained in December 2019. This opinion noted that the Veteran’s obesity was a significant risk factor for OSA and likely contributed to the development of his OSA. The examiner consulted with the director of a sleep laboratory who was certified in sleep medicine before making the conclusions in the opinion. The examiner stated that there is no sufficient evidence that PTSD causes OSA. Further, the examiner considered whether the Veteran’s PTSD caused or contributed to his obesity, which was a significant risk factor for the Veteran’s development of OSA. A review of the Veteran’s medical records revealed that his obesity pre-dated his deployment and subsequent acquiring of PTSD. As such, the examiner opined that it was less likely that PTSD caused obesity and that it was thus less likely that PTSD caused the Veteran’s PTSD. Based on the medical evidence of record, the Board finds that the preponderance of the evidence is against service connection for OSA. The examination reports of record indicate consideration of the Veteran’s contentions concerning a relationship between his sleep apnea with his service-connected disabilities—or aggravation of his sleep apnea by his service-connected disorders. The examiners offered well-reasoned opinions that the Veteran’s OSA is unrelated to his active service, or his service-connected conditions—and that his weight gain pre-dates his deployment to active service. For these reasons, service connection for OSA—on a direct or secondary basis—must be denied. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.E. Lee 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.