Citation Nr: 21007759 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 15-08 994A DATE: February 10, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected fibromyalgia and psychiatric disabilities, is denied. FINDING OF FACT The Veteran’s OSA is not secondary to the Veteran’s service-connected fibromyalgia and psychiatric disabilities and is not otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for OSA due to service or service-connected fibromyalgia and psychiatric disabilities are not met.  38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.03, 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty military service from January 2004 to May 2005, and January 2006 to May 2007. He had a period of active duty for training (ACDUTRA) from March 1991 to August 1991, and service in the National Guard. This matter was remanded by the Board in April 2019 and May 2020 and is now back before the Board for adjudication. Entitlement to service connection for OSA, to include as secondary to service-connected fibromyalgia and psychiatric disabilities, is denied The Veteran seeks service connection for OSA, to include as secondary to service-connected fibromyalgia and psychiatric disabilities. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The Veteran is service connected for fibromyalgia and a psychiatric disability. The Veteran has a current diagnosis for OSA as evidenced by a sleep study in June 2011. Various other VA treatment records show that in August 2010 he reported snoring at night and that he feels exhausted, prior to being referred for a sleep medicine consult. The May 2011 sleep medicine consult note did not indicate that the Veteran reported that his sleep apnea symptoms began during active duty. Addressing the Veteran’s secondary service connection claims, the Board concludes that the preponderance of the evidence is against finding that the Veteran’s OSA is proximately due to or the result of or aggravated beyond its natural progression by his service-connected psychiatric disability or fibromyalgia. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). The Veteran underwent a VA examination for this disability in August 2013 and February 2019, and the RO obtained addendum opinions in December 2019 and September 2020. The Veteran reported in his February 2013 VA examination that he had sleep troubles during his service overseas and that he was treated with Ambien. He also reported that his sleep apnea was thought to be associated with anxiety and depression. The February 2013 VA examiner’s opinion did not address the whether the OSA was caused or aggravated by the service connected fibromyalgia or anxiety. In the February 2019 VA examination, the examiner opined that the Veteran’s OSA was less likely than not proximately due to or the result of the Veteran’s service-connected fibromyalgia or psychiatric disability. The examiner’s rationale was that OSA occurs when muscles in the back of the throat relax too much causing the airway to become too narrow to allow normal breathing. As the VA examiner did not address the Veteran’s claim in a March 2015 letter that, according to the Association of Obstructive Sleep Apnea and Chronic Pain (AOSACP) linking fibromyalgia with OSA, the Board remanded the matter to obtain an addendum opinion. The December 2019 VA examiner opined that, as OSA is a physical obstruction of the airway, medical literature does not support a contention that fibromyalgia or anxiety disorder increase the physical obstruction. The Board again remanded the matter to obtain an opinion which addresses the AOSACP statement linking fibromyalgia with OSA. The RO obtained two opinions in September 2020 which indicated that the Veteran’s OSA was severe when it was diagnosed in June 2011 and therefore could not have been aggravated by the Veteran’s service-connected fibromyalgia or psychiatric disability. The September 2020 VA examiner also noted that the Veteran reported in the August 2013 VA examination that he was sleeping through the night and that a sleep medicine note in July 2019 showed that the Veteran was compliant with the use of his CPAP and that he did not need routine scheduled follow up appointments and could instead follow up on an as needed basis. The September 2020 VA examiner further opined that while there appears to be a prevalence of sleep-disordered breathing, including OSA, among people with fibromyalgia, based on the objective data and assessment of the Veteran’s sleep apnea has improved with CPAP treatment. The second September 2020 VA opinion addressed the AOSACP statement linking fibromyalgia and OSA, as well as a 1976 article received by VA which discusses a possible link between “fibrositis syndrome” and sleep disturbance. The VA examiner explained that fibrositis is not the same disorder as fibromyalgia, as fibrositis involves inflammation and fibromyalgia does not involve inflammation. Furthermore, the VA examiner opined that, even if the reference to fibrositis syndrome were meant to imply fibromyalgia, it does not support a causative relationship between fibromyalgia and OSA. The VA examiner also reiterated that there is no known pathophysiological mechanism in which fibromyalgia pain causes OSA. The VA examiner also noted that the Veteran was overweight and had a BMI of 29.0, and that the most common cause of OSA in adults is excess weight and obesity as it is associated with excess soft tissue of the mouth and throat which can cause the airway to become blocked. Addressing the Veteran’s potential entitlement to direct service connection, there is no evidence in the Veteran’s Service Treatment Records (STRs) of the Veteran being treated for OSA, and the Veteran was not diagnosed with OSA until undergoing a sleep study in June 2011, after separating from his last period of active duty service. Additionally, although the Veteran reported in a March 2005 post-deployment health assessment that he still felt tired after sleeping, in an October 2007 post-deployment survey, he denied having problems sleeping or still feeling tired after sleeping. Private medical records obtained from the Social Security Administration (SSA) indicate the Veteran’s diagnosis and treatment for OSA but do not support a link between the Veteran’s service and his OSA. Finally, the August 2013 VA examiner also opined that the Veteran’s OSA is less likely than not related to his service as there was no evidence for an association for deployment to the Gulf War and OSA. The Board acknowledges that the Veteran believes that his OSA is proximately due to or the result of his service-connected fibromyalgia or psychiatric disabilities. However, the Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of anatomical relationships and the interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the multiple VA examiners whose opinions, when taken together, addressed the evidence provided by the Veteran and show that there is no causal relationship between the Veteran’s service-connected fibromyalgia or his psychiatric disability and his OSA. The Veteran has not offered a medical opinion in support of his contention that his service-connected fibromyalgia or psychiatric disability is related to his OSA. Furthermore, the Veteran’s VA treatment records show that he reported sleep trouble beginning in 2010 which he believed was related to his psychiatric disability, and a May 2011 sleep medicine consultation note indicated that the Veteran snores frequently ad that he awakes feeling unrefreshed, but the consultation note does not indicate that the Veteran’s sleep apnea symptoms began during his active duty service. the Board acknowledges that the Veteran reported in a March 2005 post-deployment that he still felt tired after sleeping, he did not report any trouble sleeping in an October 2007 post-deployment survey and did not report any other symptoms of sleep apnea during service. The Board finds that the medical evidence of record does not support a nexus between the Veteran’s active duty service, to include his service and the Persian Gulf War, and his OSA. Also, the Board also finds that the medical evidence of record does not support a nexus between the Veteran’s service-connected fibromyalgia or psychiatric disability and his OSA. Additionally, the Board notes that because the Veteran served in the Southwest Asia Theater of operations during the Persian Gulf War, presumptive service connection for a qualifying chronic disability may also be established under the provisions of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. Under 38 C.F.R. § 3.317, service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. For disability due to undiagnosed illness and medically unexplained chronic multi symptom illness, the disability must have been manifest either during active military service in the Southwest Asia Theater of operations or to a degree of 10 percent or more not later than December 31, 2021. Id. The Board has also considered whether service connection should be granted under 38 U.S.C. § 1117 but finds that the Veteran does not have an undiagnosed illness under 38 C.F.R. § 3.317. See Stankevich v. Nicholson, 19 Vet. App. 470, 472 (2006) (“The very essence of an undiagnosed illness is that there is no diagnosis.”); Gutierrez v. Principi, 19 Vet. App. 1, 10 (2004) (stating that a Persian Gulf War veteran’s symptoms “cannot be related to any known clinical diagnosis for compensation to be awarded under section 1117”). OSA is not an undiagnosed illness or medically unexplained chronic multi-symptom illness within the meaning of the applicable regulations as it is a known diagnosis. See 38 C.F.R. § 3.317. Thus, presumptive service connection for OSA is not warranted under the provisions of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. While the Board has carefully reviewed the record in depth, it has been unable to identify a basis upon which service connection may be granted. After careful review, the Board finds that service connection for the Veteran’s OSA is not warranted. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Boal, 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.