Citation Nr: 21005992 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 14-37 101 DATE: February 3, 2021 ORDER Entitlement to service connection for a sleep disorder, to include obstructive sleep apnea, claimed as due to chemical exposures and/or as secondary to the service-connected adjustment disorder with depression and anxiety (psychiatric disability), is denied. FINDING OF FACT The Veteran’s sleep disorder did not have its onset in and is not otherwise related to service or to a service-connected psychiatric disability. CONCLUSION OF LAW The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b) (West 2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.310 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from March 1964 to March 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This issue was previously remanded in May 2018 and June 2020 Board decisions. In January 2018, the Veteran appeared and provided testimony at a travel board hearing before the undersigned Veterans Law Judge. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (2017); 38 U.S.C. § 7107(a) (2). 1. Entitlement to service connection for a sleep disorder, to include obstructive sleep apnea, claimed as due to chemical exposures and/or as secondary to the service-connected psychiatric disorder, is denied. 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 (2012); 38 C.F.R. § 3.303(a) (2017). To establish a right to compensation for a present disability, a Veteran 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 - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). In addition, service connection for certain chronic diseases, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2019); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability. 38 C.F.R. § 3.310 (2019); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In his June 2002 Statement in Support of Claim, the Veteran stated that he believed his participation in psychochemical testing resulted in his sleep apnea. In the alternative, the Veteran also claims that his sleep apnea is secondary to his diagnosed psychiatric disorders. The Veteran is service connected for a psychiatric disorder due to the effects of psychochemical testing during active service. First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). According to the December 2019 VA examination, the Veteran was diagnosed with sleep apnea in 2000. Thus, the first element of service connection is met. Second, the Board finds that there was an in-service injury and there is a service-connected psychiatric disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran’s STRS thoroughly document the medical testing that the Veteran underwent in service. This includes a January 1965 medical screening questionnaire completed by the Veteran. The document confirmed that the screening data would be utilized by medical professionals at Edgewood Arsenal in making assignments for various tests. This confirms the Veteran’s lay statements from November 2012 which noted that he underwent psychochemical testing at Edgewood Arsenal. Thus, the second element of service connection is met. Third, the Board finds that the evidence of record does not support a finding that the sleep apnea is related to active service or to a service-connected disability. A November 2012 Disability Benefits Questionnaire (DBQ) for Sleep Apnea was completed. A diagnosis of obstructive sleep apnea (OSA)was made. The examiner stated that the Veteran reported the onset of the condition began in 1966, and that he had difficulty staying awake, snored, and experienced poor sleep. The Veteran was provided with a VA examination in December 2012. The examiner determined that the Veteran’s sleep apnea was less likely than not related to his active duty service. The examiner noted two medical articles that discussed exposure to chemicals, biological substances, nerve gas, and psychochemicals. The examiner stated that obstructive sleep apnea is a mechanical obstruction, resulting in physical blockage of the airway while sleeping. He stated that remote exposure to the described chemicals would not cause mechanical obstruction of the airway. This examination was deemed inadequate in the May 2018 Board decision for failure to address secondary service connection. The Veteran was provided with another VA examination in December 2019. The examiner noted that obstructive sleep apnea, according to the medical literature, is a biomechanical condition resulting from floppy tissues in the throat that occludes the passage of air during the relaxation of sleep. The examiner stated that the weight of the medical literature supported that the natural progression of toxic exposure is for all symptoms to be most severe at the time of exposure, yet the Veteran did not get diagnosed with sleep apnea until 35 years after exposure. The examiner stated that nothing was found in the medical literature supporting that any exposure to an opiate antagonist, which leads to neurochemical changes in brain chemistry, would lead to the development of loose floppy throat tissues 35 years later. She found that it was highly probable that the Veteran did indeed develop difficulty sleeping due to the associated behavioral health conditions due to his psychochemical exposure and that these sleep difficulties would have been consistent with those seen in other behavioral health conditions (insomnia, frequent waking, intrusive dreams, etc.). However, sleep apnea was not a sign or symptom of a behavioral health condition and had a specific etiology. The examiner acknowledged the Veteran’s contention that it was likely that the sleep apnea was caused by the chemical testing as many of his cohorts who also underwent testing developed sleep apnea. The examiner noted however, that all of his peers were in the same demographic as the Veteran, namely elderly males, and that this demographic was more prone to sleep apnea as part of the normal aging process, including the decrease in muscle tone. As such, the examiner determined that it was less likely than not that the Veteran’s obstructive sleep apnea was caused by the psychochemical exposure or his service-connected psychiatric conditions. The Board found this opinion to be well-reasoned and supported by medical evidence, however the issue was remanded in a June 2020 Board decision as the examiner had failed to address aggravation in her opinion. A July 2020 addendum opinion was provided to address the aggravation theory. The examiner acknowledged that the Veteran complained of sleep difficulties since service and stated that these symptoms were not disputed. However, the examiner also noted that the Veteran was incorrectly conflating sleep difficulties as part of the symptomatology of psychiatric/ behavioral illness with the biomechanical condition of obstructive sleep apnea due to the loss of turgor and compliance in pharyngeal tissues. The examiner noted that the Veteran did not have formal medical training and was competent to describe his symptoms but not competent to determine the etiology of his condition. The examiner found that the Veteran’s sleep complaints following service prior to the development of sleep apnea were more in line with symptoms of psychiatric or behavioral illness. The examiner also found that the weight of the medical literature did not support that there was a potential for permanent aggravation from the Veteran's service-connected condition of adjustment disorder with depression and anxiety. The examiner stated that the diagnosed and service-connected psychiatric/behavioral health conditions and the biomechanical condition of obstructive sleep apnea were not linked and had no nexus between them. There was no potential for changes in brain neurochemistry leading to alteration of muscle turgor and compliance in pharyngeal tissues. Therefore, she determined that the Veteran’s sleep apnea was less likely than not aggravated by his service-connected psychiatric conditions. The Board found this opinion to be thorough and clear, however the issue was remanded in an October 2020 Board decision as the Veteran’s representative had submitted medical literature which he contended was relevant to the claim. Remand was therefore required for the examiner to address this medical literature. The VA examiner provided another addendum opinion in November 2020 in order to address the submitted medical literature. The examiner addressed the first article and noted that it was written for purposes of discussing options for treatment using psychotropic medication in patients with sleep apnea as psychotropic medication was well known to interfere with normal sleep patterns. There was no indication in the design of the paper to study any overlap between psychiatric disorders and the etiology of sleep apnea. The examiner noted that the paper spent some time discussing other research looking for changes in sleep apnea response and symptoms in the context of changes in certain neurochemicals that were well studied in psychiatric disorders. No effect was found in either direction, i.e., sleep apnea did not change neurochemical levels; neurochemical levels did not affect the severity or symptoms of sleep apnea. In addressing the second article, the examiner noted that only one of the medical professionals who authored the paper was trained in sleep medicine. The examiner emphasized that the article was not intended to look at the etiology of either mental/behavioral health disorders or sleep apnea but was rather designed for purposes of showing correlation between mental/behavioral health disorder and obstructive sleep apnea. The examiner then explained the differences between causation and correlation. The examiner then noted that since her July 2020 opinion, further information had been added to the claims file regarding the Veteran’s exposure to chemicals. The Veteran had received physostigmine as two separate 3-mg intramuscular injections. The usual intramuscular dose for anticholinergic syndrome was 2 mg. The Veteran was administered 3 mg, which was well within what would be performed in a drug study since one wants the side effect profile of a higher-than-anticipated clinical dose. The Committee on Toxicology of the National Academy of Sciences (CT-NAS) determined that no long-term health effects would be expected from exposure to physostigmine. The Veteran also received a single dose of benzomorphan titrated as 10 micrograms/kg of body weight. The CT-NAS determined that no long-term health effects would be expected from exposure to benzomorphan. Finally, the veteran received a single oral dose of LSD titrated as 2 micrograms/kg of body weight. The overall conclusion of the CT-NAS was that the chance of long-term health effects from LSD exposure was low but that there was a possibility for flashbacks, also known as hallucinogen-persisting perception disorder (HPPD). The final conclusion was that HPPD was more likely caused by another psychosis rather than from use of LSD itself. This has been confirmed in additional reviews. The probability of long-term health effects was thus thought to be vanishingly low. Thus, the examiner concluded that it was less likely than not that the Veteran's condition of obstructive sleep apnea was caused by, related to, or permanently aggravated beyond the normal progression of the condition by chemical/drug exposures and/or as secondary to the service-connected adjustment disorder with depression and anxiety (psychiatric disorder). The Board finds this opinion highly probative as it is provided upon review of the relevant facts (to include lay statements of symptomatology that the Board found probative) and are supported by explanation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in determining probative value of a medical opinion is whether the examiner was informed of the relevant facts); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). The examiner provided an opinion after thorough review of the Veteran’s claims file and adequately addressed all medical evidence and literature of record. The examiner’s rationale was comprehensive and well-supported; therefore, the Board finds this opinion to be highly probative in determining the etiology of the Veteran’s sleep apnea. Regarding the Veteran’s assertions that his sleep disorder is due to chemical exposures and his service-connected psychiatric disorder, the Board finds that these nexus statements are not competent. The etiology of an internal sleep disorder is not capable of lay observation, as compared to the presence of, or onset of, ringing in the ears. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which he or she has first-hand knowledge). Accordingly, service connection is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board AK 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.