Citation Nr: 21005396 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 12-04 804 DATE: February 1, 2021 ORDER Entitlement to service connection for sleep apnea is denied. FINDING OF FACT The preponderance of the evidence shows that the Veteran’s sleep apnea was not incurred in, is not due to or the result of, and was not permanently aggravated by service or a service-connected disability. CONCLUSION OF LAW Sleep apnea was not incurred in or aggravated by service or a service-connected disability. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1983 to April 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida that denied service connection for sleep apnea. The Veteran testified before the undersigned Veterans Law Judge at a July 2015 hearing at the RO. A transcript of that hearing is of record. This claim was remanded in July 2016, February 2018, and December 2019 for additional development. The case has now been returned to the Board for further appellate action. In July 2016, February 2018, and December 2019, the Board remanded the case for further development. The Board notes that the issue of entitlement to service connection for a cervical spine disability was remanded. However, while on remand the RO established service connection for a cervical spine disability in a January 2020 rating decision. As that constitutes a full grant of the benefits sought, that issue is no longer on appeal. AB v. Brown, 6 Vet. App. 35 (1993). In response to the May 2019 supplemental statement of the case, the appellant submitted a VA Form 10182, requesting review of the appeal under the new regulations of the Appeals Modernization Act. However, this case was already certified to the Board, and is not eligible for review under those regulations. Entitlement to service connection for sleep apnea The Veteran contends that he has a sleep apnea disability due to medication used to treat his service connected back and knee disabilities. Service connection may be established for disability caused by disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection for a claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in service incurrence or aggravation of a disease or injury; and (3) evidence, generally medical, of a causal relationship between the claimed in service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). A disability may be service-connected if the evidence of record shows that the Veteran currently has a disability that was chronic in service or that was chronic as defined by regulation with continuity of symptomatology demonstrated after service. 38 C.F.R. § 3.303(a), (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A disability that is proximately due to or the result of a service-connected disability shall be service-connected. When service connection is established for a secondary disability, the secondary disability shall be considered a part of the original disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability, which is aggravated by a service-connected disability. In such an instance, the Veteran is compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995). A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The service medical records do not contain any signs, symptoms, or diagnosis of obstructive sleep apnea. After service, VA and private treatment records show treatment for sleep complaints beginning in May 2010. The post-service records showed three sleep studies diagnosing sleep apnea. In June 2010, the Veteran was diagnosed with mild sleep apnea. The sleep apnea was found to be moderate in March 2013, and the sleep apnea was found to be severe in an August 2015 sleep study. VA medical records show initial complaints of sleep issues in May 2010. In July 2010 the VA physician noted that in the Veteran’s case, the chronic use of narcotics was a possible cause of daytime somnolence. January 2015 VA medical records indicate the Veteran signed a consent form for long term opioids for pain due to chronic neck, lower back, and bilateral knee pain. The consent form explicitly stated “known risks and side effects of the treatment” included sleep apnea. VA records show that the Veteran began using a CPAP machine in July 2010. At a February 2011 VA respiratory examination, the Veteran reported snoring, sleep disruption, and the use of a CPAP machine. The examiner observed that the Veteran’s only sleep study, in June 2010, did not confirm sleep apnea. The examiner referred to VA treatment records indicating chronic narcotics use may be related to daytime somnolence. The examiner concluded that “there is no diagnostic evidence of sleep apnea” and “the Veteran does not have sleep apnea.” The report of a September 2016 sleep apnea VA examination states that the Veteran did not have and had never had sleep apnea. The Veteran did not require continuous medication or use of a CPAP machine to control any sleep disorder. He “uses CPAP for an unrelated disability, specifically snoring.” The Veteran had no findings, signs, or symptoms attributable to sleep apnea. The examiner noted that the June 2010 sleep study did not document a sleep disorder and the August 2015 study was a home-based recording. The examiner concluded that the claimed sleep apnea was not related to medication used to treat a service-connected back disability. The examiner reasoned that the Veteran used a CPAP machine to treat snoring, which was distinguished from sleep apnea. Snoring was significantly more prevalent than sleep apnea and apnea had known risk factors. In September 2016 addendum opinions, the same examiner found that sleep apnea was less likely than not related to an event or injury in service because it was diagnosed in 2010, which was 19 years after separation from service. There was insufficient medical evidence and no medical documentation that it started in service. Regarding secondary causation, the examiner concluded that it was less likely than not (less than 50 percent probability) that the veteran had sleep apnea that was proximately due to or the result of a service-connected disability, to include due to the use of narcotics taken for service-connected disabilities. The examiner observed that the Veteran had obstructive sleep apnea (OSA), but did not show any central sleep apnea. Narcotic use and central sleep apnea have some association in the medical literature, but the examiner found that in the Veteran’s case, the cause of obstructive sleep apnea was the Veteran's crowded oropharynx. As to aggravation, the examiner stated that OSA is caused by a blockage in the back of the throat that blocks the upper airway. In the Veteran’s case, it was not due to narcotic treatment. It was caused by the very crowded oropharynx which had a Mallampati score of Class 3-4 (the soft palate was not visible on oral exam). The Veteran had sleep studies in 2010, 2013 and 2015, which showed OSA but did not show any central sleep apnea. Narcotic use and central sleep apnea have some association in the medical literature, but in the Veteran’s case, the cause of OSA was the Veteran's crowded oropharynx. Additionally, there was no medical evidence that OSA has been aggravated in any way by the service-connected back disability or the use of narcotics to treat back pain. The report of a December 2019 VA examination states that the Veteran had obstructive sleep apnea, with onset in 2008, and diagnosed in 2010. On oral examination, the Veteran’s soft palate was not visible. The examiner noted there was a crowded oropharynx with a Mallampati score of Class 3-4. At a July 2015 Board hearing, the Veteran testified that he used prescription narcotics for pain related to service-connected disabilities. He stated that doctors had indicated that the narcotics may be a cause of sleep apnea. Regarding the lay evidence, the veteran contends in a September 2010 statement that he has a sleep apnea disability due to medication used to treat service-connected back and knee disabilities. The Veteran’s representative contends in a February 2020 brief that long-term opioid use for chronic pain has been associated with central sleep apnea and obstructive sleep apnea. The representative cites an internet article to support the statement. However, the link supplied for the article is broken. Although the evidence shows that the Veteran experienced sleep apnea, the Board concludes that the preponderance of the competent evidence is against a finding of a relationship to service, or to any service-connected disability. The Veteran has sought ongoing medical treatment through VA and private providers. However, the Board finds that the competent evidence of record does not support a finding that relates the Veteran’s current sleep apnea to service, or to any service-connected disability. Therefore, as there is no competent evidence linking a currently diagnosed disability to service, the claim must be denied on both a direct and secondary basis. It is to be noted that the Board is not free to substitute its own judgment for that of a medical expert. Colvin v. Derwinski, 1 Vet. App. 171 (1991). However, the Board is required to assess the credibility and weight to be given to evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). The Board has considered the Veteran’s and other lay statements. Laypersons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, the etiology of the Veteran’s obstructive sleep apnea is a complex medical matter, as the Veteran has multiple risk factors for the development of obstructive sleep apnea. It has not been shown that the Veteran or accredited representative have the medical training, education, or experience to competently attribute the Veteran’s obstructive sleep apnea to any and all of the Veteran’s various risk factors. Therefore, the Board finds the opinions of the VA examiners, who had the medical expertise and training necessary to offer such a competent opinion, outweigh the various lay statements of record. The Veteran’s accredited representative noted in a February 2020 brief that the Veteran’s obstructive sleep apnea was due to or aggravated by medications to control pain from the service-connected disabilities. The Veteran’s accredited representative has argued that in patients with chronic pain, long-term opiod use has been associated with central sleep apnea and obstructive sleep apnea. To support the argument, the accredited representative provided a broken link to an internet article. However, according to the December 2019 VA examiner, the Veteran’s obstructive sleep apnea was caused by a crowded oropharynx, and was less likely caused or aggravated by narcotics use or the service-connected disabilities. Although the examiner acknowledged some medical literature to support an association between central sleep apnea and narcotic use, the literature does not show any such association for obstructive sleep apnea. Therefore, the argument submitted by the accredited representative that the opioids to manage pain for the Veteran’s service-connected led to obstructive sleep apnea are not supported by the competent evidence of record. Taken as a whole, the February 2011, September 2016, and December 2019 VA examiners opinions are the most persuasive evidence of record. Those examiners opined that it was less likely as not that the Veteran’s sleep apnea was a result of or related to service, or was caused or aggravated by the service-connected disabilities or narcotics use due to the service-connected disabilities. The VA examiners specifically identified and discussed the Veteran’s and accredited representative’s contentions and theories concerning service, and sleep apnea. In particular, the examiners specifically discussed the service medical records and post-service records. The VA examiners referenced medical literature and did not use speculative language in the opinions. Accordingly, concerning the claim for sleep apnea, the VA examiners’ opinions are found to carry significant weight and be more persuasive than the other evidence of record. The evidence of record establishes that the Veteran has current sleep apnea. However, the Board finds that the preponderance of the evidence of record is against a finding that the Veteran’s sleep apnea is related to service, any incident of service, or to service-connected disability. The most persuasive medical opinions of record weigh against the claim for sleep apnea on both direct and secondary bases. Accordingly, the Board finds that the claim for service connection for sleep apnea must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals 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.