Citation Nr: 21006854 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 19-28 531 DATE: February 5, 2021 ORDER Service connection for obstructive sleep apnea is denied. FINDING OF FACT The Veteran’s obstructive sleep apnea is not shown to have onset in service, nor is it related to service, or related to or aggravated by his service-connected lung disease. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea have not been met. 38 U.S.C.§ 1110; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1949 to April 1953. This matter is on appeal from an August 2017 rating decision and was previously remanded in June 2020. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). In general, service connection requires (1) 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) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Secondary service connection requires that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury, or that service-connected disease or injury has aggravated the nonservice-connected disability for which service connection is sought. 38 C.F.R. § 3.310. The Veteran is currently seeking service connection for obstructive sleep apnea as a result of his military service as well as secondary to his lung disease. Service treatment records were silent for any complaints, diagnosis, or treatment relating to sleep problems or sleep apnea. His separation examination in April 1953 did not document any clinical abnormalities relating to his respiratory system. Post service, the Veteran developed asbestosis in 1997 and was granted service connection for his lung disease by a May 2003 rating decision. He was ultimately assigned a 100 percent rating by a December 2019 rating decision. VA treatment records show that the Veteran began showing symptoms of obstructive sleep apnea approximately in 2013, which was several years after the diagnosis of his lung disease. In a private medical opinion dating May 2016, it was noted that the Veteran has significant oxygen deficit and that his oxygen should be tested when he walks at night. Lung function test revealed significant small airway disease with no response to bronchodilators. While his lung volumes were in the normal range, his diffusion capacity was reduced at 46 percent and his baseline oxygen saturation was in the low 90s to high 80s. At a March 2017 VA evaluation, the Veteran reported worsened lung condition over the last 18 months. His physical activities have been significantly limited. The examining physician noted that an October 2016 polysomnography with CPAP results found that the Veteran has obstructive sleep apnea associated with moderate oxyhemoglobin desaturations and disruption of sleep architecture, and poor sleep efficiency. The Veteran reported to the physician that he had been experiencing increased shortness of breath with wheezing at night. The Veteran was afforded a VA evaluation in August 2017, which his obstructive sleep apnea was confirmed. He requires a CPAP and also has significant small airway obstruction. The examiner opined that the Veteran’s obstructive sleep apnea and lung disease are two separate entities and are unrelated. The medical literature does not support a medical relationship between the two disorders. The physician also indicated that a medical baseline level of severity for the Veteran’s obstructive sleep apnea could not be established. Furthermore, the medical literature does not support that sleep apnea was aggravated beyond its natural progression by early asbestosis lung disease. In an August 2018 private treatment record, Dr. H.F. noted that the Veteran’s asbestosis had been present for several years. It has caused dyspnea and therefore, contributes to his lung problems. However, it does not contribute to his current sleep apnea. A pulmonology report in August 2018 revealed that the Veteran also has COPD. By November 2019, the Veteran’s Disability Benefits Questionnaire noted that the Veteran experiences much difficulty sleeping due to trouble breathing. Even with CPAP, he has developed chest pains and shallow breathing. After finding that the Veteran’s lung disease had significantly worsened, the Veteran was assigned a 100 percent disability rating for his lung disease. When the matter came to the Board in June 2020, it was remanded for additional development as the August 2017 VA medical opinion was inadequate. The examining physician merely concluded that the Veteran’s obstructive sleep apnea is “not medically related to” his lung disease. However, the overall treatment record noted that the Veteran’s decreased or worsening lung function due to his service-connected early asbestos lung disease resulted in reduction in oxygen saturation. The Board noted that the Veteran’s polysomnography with CPAP results indicate that the Veteran’s sleep apnea was associated with moderate oxyhemoglobin desaturation with disruption of sleep architecture and sleep efficiency and that he has significant oxygen as well as significant small airway obstruction. The matter was remanded so that a medical examiner may consider the Veteran’s worsening lung function. A new medical opinion was subsequently obtained in October 2020 to address both direct service connection and secondary theory of entitlement. The examiner explained that obstructive sleep apnea is an anatomical condition in with the structures of the upper airway relax or prolapse during sleep. This results in the temporary occlusion of the airway. While some studies have shown that obstructive sleep apnea and respiratory conditions, to include the Veteran’s service connection early asbestos lung disease, can coexist, there is no credible medical evidence to support the notion that the anatomical condition can be aggravated by other respiratory condition. There is no pathophysiology to support a mechanism for aggravation. The examining physician noted that the Veteran’s end stage lung disease due to his non-service-connected COPD and his obstructive sleep apnea have overlapping symptoms. However, he was unable to separate the symptoms but concluded that it is less likely that the Veteran’s obstructive sleep apnea is related to or aggravated by his lung disease. The Veteran’s reduction in oxygen saturation is the result of his non-service-connected COPD, which has resulted in the end stage lung disease. While obstructive sleep apnea also results in decrease oxygen saturation, it happens only at night (during sleep), when the structures of the upper airway relaxes or prolapses. The Veteran’s end stage lung disease (COPD) results in difficulty breathing at all times, even at night. Therefore, this condition does not influence or worsens the anatomical condition of obstructive sleep apnea. In reviewing the Veteran’s service treatment records, the examining physician could not find documentation of symptoms or diagnosis of obstructive sleep apnea. The Veteran was first diagnosed with obstructive sleep apnea approximately 60 years after his separation from service. Thus, it is less likely than not that the Veteran’s current sleep apnea had onset in service or is otherwise related to service. In review the totality of the record, the Board finds that service connection for obstructive sleep apnea is not warranted. First, the Board has considered the Veteran’s consistent assertion that his obstructive sleep apnea resulted from his lung disease. However, the overall objective medical evidence fails to support this contention. While the Veteran’s treatment records show that the Veteran suffers from reduced oxygen saturation because of is lung disease as well as obstructive sleep apnea, he has not submitted a medical opinion that supports a positive nexus between the two condition. To the extent that the Veteran believes that a nexus likely exists, he is only competent to provide testimony concerning factual matters of which he has firsthand knowledge and experiences through his sense. Barr v. Nicholson, 21 Vet. App. 303 (2007). However, the issue of causation of such a medical condition is a medical determination outside the realm of common knowledge of any lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, although the Board has carefully considered the lay contentions of record suggesting that the Veteran’s obstructive sleep apnea is related to his lung disease, the Board affords the objective medical evidence of record, which weighs against finding such a connection, with greater probative weight than the lay opinion. The Board must rely on the objective medical opinion, which remains the October 2020 VA medical opinion. Pursuant to an evaluation of the Veteran’s record, the DBQ physician found that it was less likely that the Veteran’s obstructive sleep apnea is related to or aggravated by his service-connected lung disease. In his rationale, the DBQ physician explained that obstructive sleep apnea is a separate and distinct anatomical condition than the Veteran’s end stage lung disease. The two conditions, which are of different human pathophysiology, both do in fact, result in reduced oxygen saturation. While it was not possible for the physician to precisely separate the Veteran’s symptoms, he ultimately found that the Veteran’s decrease in oxygen saturation due to sleep apnea occurs at night. During sleep, the structures of the Veteran’s upper airways relaxes, causing the obstruction of airways, as opposed to poor lung function due to his lung disease. Therefore, because of its different anatomical mechanisms, it is less likely than not that the Veteran’s obstructive sleep apnea is caused or aggravated by his service-connected lung disease. Additionally, the Veteran’s own private physician opined in an August 2018 note that his current sleep apnea is not affected by his lung disorder. The Board has also considered whether the Veteran’s claim may prevail under a direct basis but finds that it does not. The Veteran’s service treatment record was negative for any complaints or diagnosis relating to sleep apnea or any symptoms suggestive of sleep apnea such as loud snoring or interrupted sleep. The first documentation of his obstructive sleep apnea was not until several decades after his separation from service, and the Veteran does not contend that his sleep apnea onset in service. While not dispositive, the lengthy passage of time between the Veteran’s military service and his post service diagnosis of obstructive sleep apnea is a factor that weighs against his claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Moreover, the objective medical evidence, namely the October 2020 VA medical opinion, found that it is less likely than not that the Veteran’s obstructive sleep apnea is related to service. The Veteran has not presented any evidence suggesting that there is a relationship between the Veteran’s current sleep apnea and his past military service. Overall, the evidence in this case is not so evenly balanced so as to allow the application of the benefit of the doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, for the reasons above, entitlement to service connection for obstructive sleep apnea is denied. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Yeh, 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.