Citation Nr: 21007995 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 18-04 095 DATE: February 11, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected posttraumatic stress disorder (PTSD), is denied. FINDING OF FACT The most probative evidence establishes that OSA did not have its inception during active duty and is not otherwise causally related to the Veteran’s active service’ PTSD has not been shown to have caused or aggravated the Veteran’s OSA. CONCLUSION OF LAW The criteria for entitlement to service connection for OSA have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from January 1962 to October 1969, including service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), which, inter alia, denied service connection for OSA. The Veteran filed a timely Notice of Disagreement (NOD), received in March 2017. The Veteran disagreed with that decision and perfected an appeal to the Board. In March 2019 and August 2020, the Board remanded the matter for further evidentiary development, to specifically include providing the Veteran with a VA examination and obtaining a medical opinion regarding the likelihood that the Veteran’s OSA is related to service or to his service-connected PTSD. Upon completion of the requested development, the agency of original jurisdiction (AOJ) issued a Supplemental Statement of the Case (SSOC) in November 2020 in which it continued to deny the Veteran’s claim. The matter was thereafter returned to the Board for further appellate review. Also, this appeal has been advanced on the Board’s docket pursuant to 38C.F.R. §20.900(c). 38 U.S.C. § 7107(a)(2). Entitlement to service connection for OSA The Veteran contends that his severe OSA is secondary to his service-connected PTSD, to include due to alcohol use related to PTSD. See January 2018 VA Form 9. He also contends that because he began to drink heavily during active duty after his return from Vietnam, his sleep apnea is service-related. See June 2020 statement. 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 which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA 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(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Applying the facts in this case to the applicable legal criteria, the Board finds that the preponderance of the evidence is against the claim. As a preliminary matter, the Board finds that the most probative evidence establishes that OSA did not have its inception during active duty. The Veteran’s service treatment records are negative for pertinent complaints or abnormalities, including OSA. Physicals conducted in February 1964, September 1965, and November 1965 were normal in all pertinent respects. In connection with the September 1965 physical examination, the Veteran completed a report of medical history on which he denied having or ever having had symptoms such as frequent trouble sleeping or shortness of breath. At the Veteran’s October 1969 separation examination, clinical evaluation was again normal in all pertinent respects. The post-service record on appeal indicates that sleep apnea was not diagnosed until 1996, approximately 27 years after service separation. Although sleep apnea was not identified during active duty or for many years thereafter, service connection may nonetheless be established for any disease diagnosed after discharge when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In this case, however, the Board finds that the most probative evidence reflects that the current sleep apnea is not related to an in-service disease or injury. In October 2020, after examining the Veteran and reviewing the record, a VA clinician concluded that it is less likely than not that the Veteran’s current OSA had its inception during his period of active service or is otherwise causally related to an in-service disease or injury. The examiner explained that during active duty, the Veteran was not diagnosed as having sleep apnea, nor did he report issues with sleeping and or snoring while in service. The Board affords the October 2020 opinion significant probative weight as it was rendered after consideration of the clinical evidence as well as the Veteran’s reported history and the examiner provided a rationale for her conclusion which is consistent with the evidence of record. There is no other competent evidence of record which suggests that the Veteran’s current sleep apnea had its inception during active service or is otherwise causally related to an in-service disease or injury. The Board has considered the Veteran’s contentions to the effect that his current sleep apnea is the result of alcohol abuse during active duty. He reports that after his return from Vietnam, he regularly drank to the point of blacking out whenever he was not on duty. Section 8052 of the Omnibus Budget Reconciliation Act (OBRA) of 1990, Pub. L. No. 101-508, § 8052, 104 Stat. 1388, 1388- 351, however, prohibits payment of compensation for a disability that is a result of a veteran's own alcohol or drug abuse. Moreover, § 8052 also amended 38 U.S.C. § 105(a) and mandated that for claims filed after October 31, 1990, an injury or disease incurred during active service will not be deemed to have been incurred in the line of duty if the injury or disease was a result of the person's own willful misconduct, including abuse of alcohol or drugs. Thus, the Veteran’s reported abuse of alcohol while on active duty does not provide a basis upon which to award service connection for sleep apnea. For the foregoing reasons and bases, the Board concludes that the preponderance of the evidence is against a finding that the Veteran’s current sleep apnea had its inception during active duty or is otherwise causally related to active duty. The Board further finds that the Veteran’s current sleep apnea is not caused or aggravated by a service-connected disability, to include PTSD. Specifically, the medical evidence does not support a finding that the OSA was due to or aggravated by the service-connected PTSD, to include related alcohol use. In this regard, the Board notes that the October 2020 VA examiner stated that research shows that OSA is caused by collapse of the upper airways during sleep and that there is no physiologic basis for service-connected PTSD to cause upper airway collapse. The examiner concluded, therefore, that PTSD cannot medically be deemed to be the cause of the Veteran’s severe OSA. Regarding whether or not the PTSD, to include related alcohol use, aggravated the Veteran’s severe OSA, the October 2020 VA examiner noted that alcohol use can increase the risk for OSA, but cannot alone cause it. The opinion also mentions weight gain can cause OSA. The medical records show the Veteran is slightly overweight. Therefore, the examiner opined that weight gain is the more likely cause of the OSA. The Board finds that the most probative evidence establishes that the Veteran’s severe OSA, is not the result of service-connected disability. As detailed by the VA examiner, although the Veteran did drink excessive alcohol for years, as a means to cope with his PTSD, alcohol use alone cannot cause OSA. The VA examiner also noted medical evidence shows PTSD also cannot physically cause OSA. The VA examiner also noted PTSD, to include alcohol use, did not aggravate the Veteran’s OSA. Alcohol use can increase an individual’s risk of developing OSA, but it does not aggravate, or increase the severity of the OSA. The Board finds the October 2020 VA examiner’s opinion highly probative because it was based on a review of the claims file, consideration of the relevant medical history, and the opinion was accompanied by a detailed rationale and is consistent with the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Additionally, there is no competent evidence to the contrary. With respect to the Veteran’s contentions that his severe OSA is due to his excessive alcohol use, which was caused by his PTSD, the VA examiner observed that alcohol use can increase the chances of an individual developing OSA, but is not the sole cause of OSA. Also, as noted above, the examiner cites medical research that states PTSD cannot cause the physical changes in the airway that lead to OSA. The Board has considered the Veteran’s lay statements and finds the Veteran competent to report symptoms; however the Board has assigned less probative weight to the lay statements. The Veteran in this case is not competent to determine the cause of his symptoms because it would involve medical inquiry into biological processes, anatomical relationships, and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the Veteran in this case, who has not been shown by the evidence of record to have medical training or skills. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In summary, the Board finds that the most probative evidence establishes that the Veteran’s OSA was not incurred in, nor otherwise causally related to, his active service, and that such was not caused or aggravated by a service-connected disability. Additionally, excessive alcohol use was not an intermediate step between the Veteran’s service-connected PTSD and his severe OSA. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Kristin E. Neilson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Penn, 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.