Citation Nr: 21005405 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 14-21 102A DATE: February 1, 2021 ISSUE Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected post-traumatic stress disorder (PTSD), asthma and bronchitis and traumatic brain injury (TBI) with headaches. ORDER Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected post-traumatic stress disorder, asthma and bronchitis and traumatic brain injury with headaches is denied. FINDINGS OF FACT 1. Sleep apnea was not manifest during active service, or until many years after service, and is not shown to be causally or etiologically related to an in-service event, injury, or disease. 2. Sleep apnea is not caused or aggravated by the Veteran’s service-connected disabilities including post-traumatic stress disorder, asthma and bronchitis and traumatic brain injury with headaches. CONCLUSIONS OF LAW Sleep apnea was not incurred in or aggravated during service and is not proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Air Force from November 1991 to August 1994 and October 2004 to January 2006. This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In October 2017 the Veteran testified before the undersigned Veterans Law Judge. A transcript of the testimony offered at the hearing has been associated with the record. The Board remanded this issue in February 2018 and August 2020 for further development. Upon review of the Veteran’s claim file, the Board finds that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Therefore, the Board will proceed to the merits of the issue on appeal. Service Connection Generally, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (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). Further, service connection may be warranted for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (a). Secondary service connection requires (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). A disability deemed proximately due to or the result of a service-connected disease or injury shall be service connected ("secondary service connection"). 38 C.F.R. § 3.310 (a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310 (b). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. In this case, the Board has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, with regard to the Veteran's claims. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected post-traumatic stress disorder, asthma and bronchitis and traumatic brain injury with headaches. The Veteran is claiming service connection for sleep apnea, to include as secondary to his service-connected disorders and contends his sleep apnea began in and has continued since service. The Veteran was granted service connection for multiple disorders including post-traumatic stress disorder effective January 2006, asthma and bronchitis effective January 2006 and a traumatic brain injury effective March 2008. The Veteran's service treatment records are silent for any diagnosis or treatment for sleep apnea during active service. The Board does recognize however that there was a noted complaint of fatigue in the Veteran’s November 2005 Post-Deployment medical report. Additionally, VA treatment records reflect that following discharge from service the Veteran first made complaints about difficulty sleeping in March 2006. VA treatment records also reflect that the Veteran was first diagnosed with sleep apnea following a sleep study in April 2012, for which he began to receive treatment including a CPAP machine. VA provided the Veteran with an examination for his sleep apnea in July 2013. The examiner did not review the Veteran’s claim file but did conduct an in- person examination of the Veteran. At that time the examiner continued a diagnosis of obstructive sleep apnea. The Veteran was noted to use a CPAP machine but did not require continuous medication for his condition. The examiner did not offer an opinion on the etiology of the Veteran’s OSA. The Veteran was afforded another VA examination in May 2014. The examiner noted that he reviewed the Veteran’s claim file. That examination report reflected an assessment of obstructive sleep apnea after service, with the examiner remarking that "no event or exposure" in service "causes" sleep apnea. The examiner did not offer a clear opinion on direct service connection, but found it was less likely than not that the Veteran's service-connected respiratory disability, PTSD and TBI with headaches caused the Veteran's obstructive sleep apnea. The examiner offered no opinion on whether the Veteran’s sleep apnea was aggravated by his service-connected disabilities. In a February 2018 decision the Board found the May 2014 examination to be inadequate and remanded with instructions that the examiner ascertain the presence, nature and likely etiology of the Veteran’s OSA. Further, the examiner was asked to provide an opinion on whether it was at least as likely as not that the Veteran’s OSA was caused or aggravated by the service-connected PTSD, asthma and bronchitis and/or TBI with headaches. The Veteran was afforded the Board-directed VA examination in May 2018. After reviewing the Veteran’s claim file, the examiner opined that it was less likely than not that the Veteran’s OSA was incurred during active service. In providing a detailed rationale the examiner explained that the Veteran’s service treatment records were negative for a diagnosis of OSA. She recognized the Veteran’s contentions that his daytime fatigue and snoring began in service, however she explained that those symptoms are not diagnostic of OSA and are common in the general population. The examiner stated that after reviewing current medical literature in Up to Date that snoring can be indictive of OSA but can also be associated with conditions that narrow the upper airway such as obesity, nasal congestion, craniofacial abnormalities, etc. The examiner explained that in this case the Veteran has asthma, GERD and PTSD as possible contributing factors to his daytime fatigue and that“ [w]ithout a diagnostic sleep study in proximity to his active duty service, then, it cannot be stated with any degree of certainty that the reported symptoms were manifestations of OSA versus his other medical conditions.” She explained that the Veteran has other medical conditions in terms of his snoring and daytime fatigue which outweigh the potential contribution of OSA, including a forty-pound weight gain from his time in service to his diagnosis of OSA. When addressing whether the Veteran’s sleep apnea was aggravated by his service-connected PTSD, asthma and bronchitis and/or TBI with headaches, the examiner opined that there was an absence of symptoms to suggest a “permanent worsening or progressions beyond its natural history” of the Veteran’s sleep apnea. In the August 2020 remand the Board found the May 2018 VA examination to be inadequate in so much as the standard for “aggravation” that the examiner relied upon when offering her opinion was improper as the examiner provided an opinion on “permanent” worsening, rather than “any worsening” of the Veteran’s OSA. Therefore, the matter was remanded again for an addendum medical opinion to be obtained. In September 2020 the file was returned to the May 2018 examiner for an addendum opinion. At that time the examiner opined that it was less likely than not that the Veteran’s OSA was caused by or aggravated by his service- connected PTSD, asthma and bronchitis and/or TBI with headaches. In providing a rationale the examiner explained that while PTSD and asthma/chronic bronchitis are conditions which have been found to be common co-morbid conditions with OSA, causality has not been found between these conditions. Furthermore, she explained a TBI has no physiological mechanism by which to cause or aggravate OSA. OSA is a condition which occurs by upper airway obstruction during sleep which can cause interrupted sleep. While it is possible that PTSD, asthma/bronchitis, and TBI with headaches may also contribute to an interrupted sleep pattern, “they do not do so by causing the upper airway obstruction during sleep that characterizes and defines OSA.” Furthermore, the examiner stated that asthma/bronchitis are inflammatory diseases within the airway which are separate and unrelated to the extrinsic upper airway compression which occurs with OSA. In summary the examiner concluded that there is no physiological mechanism by which the Veteran’ service- connected conditions could worsen or aggravate his OSA. The Board finds the May 2018 and September 2020 VA medical opinions to be of great probative value. Indeed, the examiner considered the Veteran's contentions, the claims file, and clinical medical evidence before providing a negative opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The examiner's negative opinion was supported by a sufficiently clear and well-reasoned medical rationale and was consistent with the verifiable facts regarding the Veteran's contentions. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005). The Board recognizes that in asserting that his condition is related to his service the Veteran testified at the October 2017 Board hearing that following his deployment to Iraq several soldiers would complain about his snoring. When he returned home, he stated that his ex-wife had noticed that he was having issues with sleeping and suggested he have a sleep study done. He stated that he noticed that he was constantly tired. The Veteran also testified that he had no issues with sleep apnea prior to service. The Board acknowledges that the Veteran is competent to provide statements as to his beliefs that his sleep apnea is related to service. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). In order for lay evidence to be competent, the individual must have personal knowledge, derived from his/her own senses, of what is being attested; "[c]ompetent testimony is thus limited to that which the witness has actually observed, and is within the realm of his personal knowledge." Layno v. Brown, 6 Vet. App. 465, 471 (1994). Here, the Veteran is competent to provide statements about his symptoms relating to his claimed sleep apnea. However, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding etiology of such a condition of any kind. See 38 C.F.R. § 3.159 (a)(1) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what he has experienced, he is not competent to ascertain the etiology of any current condition, as the causative factors for such are not readily subject to lay observation. See Layno v. Brown, 6 Vet. App. 465 (1994); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, his assertions to that effect are of no probative value. There are no competent medical opinions of probative value in favor of a positive nexus to active service from any VA examiner or medical treatment provider from any source. Upon review of the record, the Board concludes that entitlement to service connection for sleep apnea is not warranted, either via direct or secondary service connection. The Board notes a current diagnosis of sleep apnea, and thus the requirement for a current disability is shown. The Board acknowledges the Veteran's contentions, and the Veteran's service and post-service statements are noted. However, the VA and private medical records are silent for any diagnosis of sleep apnea until April 2012, and there is no competent evidence to tie the current assertion to any in-service disease or injury. The Board thus finds the Veteran fails the third prong of the test for entitlement to service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. In summary, the medical evidence in this case outweighs the Veteran's assertions that his current sleep apnea is of service origin or was caused or aggravated by his service-connected disabilities. For these reasons, the preponderance of the evidence is against the claim and service connection for sleep apnea is not warranted. As the preponderance of the evidence weighs against the claim, the benefit of the doubt rule is not for application. 38 U.S.C. § 5107(b), 38 C.F.R. § 4.3; see Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Nettey, Associate 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.