Citation Nr: 21008022 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 16-05 663 DATE: February 11, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is granted. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, the Veteran’s OSA first manifested in service. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea OSA have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in in the United States Army from March 1987 to April 2009 with two tours of duty in Iraq. He was awarded the Bronze Star Medal. By way of background, following the initial denial from the Agency of Original Jurisdiction (AOJ) for the Veteran’s service connection claim for sleep apnea, the Veteran appealed the decision to the Board. The Board denied the claim in a September 2018 decision. The Veteran subsequently appealed to the United States Court of Appeals for Veterans Claims (Court). In a June 2019 Court order, a Joint Motion for Remand (JMR) was issued, directing the Board to address the issue of sleep apnea as secondary to the Veteran’s service-connected PTSD, as raised by the record. In March 2020 and October 2020, the Board remanded the appeal for a VA examination and medical opinion, which have been completed. Therefore, the issue of entitlement to service connection for OSA to include as PTSD is once again before the Board. 1. Entitlement to service connection for OSA to include as secondary to PTSD The Veteran seeks entitlement to service connection for sleep apnea. To establish service connection, the evidence must generally show (1) a present disability, (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. §§ 3.303(d). Service connection on a secondary basis is warranted when it is shown that a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. This includes disabilities aggravated or made chronically worse by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Pursuant to 38 U.S.C. § 1110 and 38 C.F.R. § 3.310(a), when aggravation of a Veteran’s non-service-connected condition is proximately due to or the result of a service-connected condition, such Veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See Allen, 7 Vet. App. at 448. The Board notes that the United States Court of Appeals for Veterans Claims (CAVC) has noted that conditions may wax and wane in severity, and that a medically ascertainable incremental increase in disability, may meet the definition of “disability” – “the impairment of earning capacity due to disease, injury, or defect.” Ward v. Wilkie, 31 Vet. App. 233, 239-40 (2019). The Board must assess the credibility and weight of evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The standard of proof to be applied in decisions on claims for veterans’ benefits is set forth at 38 U.S.C. § 5107. A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. 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 Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Here, the Veteran’s service treatment records are silent for any complaints, treatment, or diagnoses of obstructive sleep apnea. However, in October 2008, the Veteran reported having a problem with his sleep rhythm and that he would lie awake, awaken early, and had difficulty falling back asleep. Following the reports of difficulty sleeping, the Veteran was diagnosed with insomnia and given Ambien to correct his sleep cycle. Additionally, the Veteran’s November 2008 separation examination noted difficulty sleeping, but did not report any apneic symptoms. In 2011, during a rhinitis exam, the Veteran reported that he began snoring approximately in 2002 while on active duty. In May 2020, a fellow service member submitted a buddy statement in support of the Veteran’s in-service sleep issues. The statement noted that in 2007, while in Iraq, the fellow service member noticed the Veteran’s sleep issues such as restless sleep, loud snoring, gasping for air, and that the Veteran would frequently stop breathing. Following active service, in July 2011, the Veteran reported that his wife stated that he snored and experienced some apneic events while sleeping. The Veteran also reported occasional awakening due to his own snoring or a “choking” sensation. He also admitted that he had difficulty staying asleep every night. Later, the Veteran was diagnosed with obstructive sleep apnea following an August 2011 sleep study. Additionally, Veteran’s medical records note that at the time of the sleep study the Veteran was considered obese with a body mass index (BMI) above 34. November 2011 Medical Treatment Record. The Veteran’s medical records continue to note treatment for obstructive sleep apnea, as well as obesity. In October 2013, Dr. C.B., the Veteran’s private treating physician who diagnosed him with sleep apnea, submitted a statement noting that the Veteran was diagnosed with insomnia on active duty and was more recently diagnosed with sleep apnea. Dr. C.B. opined that, based on the Veteran’s symptoms and review of his military medical records, “there is a very high probability that he had this condition while on active duty.” Dr. C.B. did not provide any further rational for his opinion. Also in October 2019, a private certified physician’s assistant submitted a statement stating that after review of the Veteran’s service treatment records and post service medical records that it is “more likely than not” that the Veteran’s “sleep apnea began during service, but remained undiagnosed until 2011.” Further opining that the Veteran’s described symptoms in service are “classic symptoms” of sleep apnea. In connection with this claim, the Veteran underwent a VA examination in June 2016, where the examiner elicited a lay history from the Veteran, reviewed the entire claims file, and performed a physical examination. During the exam, the Veteran claimed that he had symptoms of sleep issues while in the military and was diagnosed with insomnia. He also reported that his wife told him that he snored loudly and needed to go to another room. The examiner opined that sleep apnea was less likely than not incurred in service. The examiner stated that the Veteran’s in-service and immediate post-service symptoms of difficulty falling asleep and staying asleep were more typical of PTSD or depression. In so doing, the examiner referred to medical literature to provide risk factors for obstructive sleep apnea such as age, gender, and obesity. The examiner noted that the Veteran is service connected for PTSD, and other examiners have also attributed his sleep problems to PTSD. Following the June 2019 JMR, the Board remanded the issue to the AOJ for a second VA examination in order to fully address the relationship between the Veteran’s PTSD and sleep apnea condition. March 2020 BVA Decision. In May 2020, the Veteran was provided a second VA examination. During the examination, the examiner opined that the Veteran’s sleep apnea is less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that the Veteran reported that he began snoring in 2002 and submitted buddy statements regarding his snoring from a fellow service member and his wife, as well as noting “trouble sleeping” on his separation examination. However, the examiner provided medical literature, which states that a history of snoring is not useful in establishing a diagnosis of OSA. “Snoring is common in sleep apnea patients but is not useful for establishing the diagnosis . . . Snoring on its own is common and does not discriminate between those with and without OSA” and “Likewise, self-reported sleepiness and morning headaches do not help discriminate among patients with and without OSA.” Also, the examiner stated that “trouble sleeping” is more likely a symptom of PTSD rather than a separate sleep disorder and does not indicate a diagnosis of sleep apnea. The examiner further opined that the Veteran’s post service weight gain, which was greater than 10%, caused the Veteran to be 6 times more likely to have sleep apnea in 2011 than he was in 2009 when he separated from active service. Regarding the Veteran’s claim for secondary service connection, the examiner provided a 2015 study that “showed increase incidence of OSA in veterans with PTSD and increasing severity of PTSD increased the risk of testing positive for OSA.” However, the examiner also noted a 2011 study which found that PTSD is not necessarily associated with a higher prevalence of sleep apnea, but PTSD severity was related to OSA, which may possibly mean that comorbid OSA leads to an increase in PTSD complaints. The examiner relied on the 2011 study in the determination that it is less likely than not that the Veteran’s sleep apnea was caused or aggravated by his service-connected PTSD, and that it is also less likely than not that the veteran has any sleep disorder that was caused or aggravated (i.e., permanently worsened beyond natural progression) by the his service-connected PTSD. Following an August 2020 addendum medical opinion, which cited many of the same studies in support of finding that there is no nexus between the Veteran’s service or service-connected PTSD and his obstructive sleep apnea, the Board remanded the Veteran’s claim to obtain an additional medical opinion in order to properly adjudicate the claim. See October 2020 BVA Decision. The remand requested the examiner discuss direct service connection, secondary service connection, and whether the Veteran’s weight gain was due to his PTSD, and if so, did the weight gain cause/aggravate the Veteran’s obstructive sleep apnea. In November 2020, a fourth VA examination was conducted. The examiner opined that the Veteran’s sleep apnea was less likely than not incurred in-service, and that it is less likely than not due to or the result of the Veteran’s service-connected PTSD. The examiner noted that it is well established that PTSD can lead to changes in sleep cycle, and can lead to disruptive sleep and insomnia, but not to the obstruction of the upper airways, which is the cause of sleep apnea. The examiner further explained that obstructive sleep apnea only worsens with age and increased obstruction on the upper airways. Therefore, PTSD alone will not aggravate sleep apnea beyond its natural progression. Additionally, in response to the buddy statements describing snoring and sleep issues, and the 2013 and 2019 positive nexus opinions provided by the Veteran’s private physicians, the examiner noted that it is well established in the medical literature that snoring does not equate to sleep apnea. Further, the examiner, after review of the entire record, noted that there is no evidence of sleep apnea complaints from separation or notes from medical providers in-service that would point to a possible diagnosis of sleep apnea in-service. Lastly, the examiner was asked to provide an opinion on whether it is as least as likely as not that the Veteran’s service-connected PTSD symptomologies and prescribed medications caused him to become morbidly obese; and whether such obesity was a substantial factor in the Veteran’s diagnosis of sleep apnea or the aggravation of his sleep apnea. In response, the examiner noted that it is well established that Veterans tend to gain weight following separation from the military because they no longer have required physical training. Additionally, prior to the Veteran’s diagnosis of sleep apnea in 2011, the Veteran was no prescribed any medications in 2010 or 2011 that are linked to weight gain. Furthermore, the years leading to the Veteran’s 2020 sleep study he was also not taking any medications for PTSD. The Veteran was prescribed trazodone for a short time to help with his insomnia, but it is not a known medication with the side effect of weight gain. Therefore, as he was not prescribed any medications prior to the sleep study and also in the months leading to the second sleep study it is less likely than not that the Veteran’s service connected PTSD, or its symptomology/medication caused, was a factor in, or aggravated the Veteran’s sleep apnea. On review of the record, the Board finds that the VA examiner opinions on direct service connection for OSA remain flawed. The examiners acknowledge the lay witness descriptions of “snoring” but find that snoring does not equate to sleep apnea. However, the lay statements describe more than snoring and include symptomatology of stopped breathing, gasping for air, gargling sounds during sleep and daytime sleepiness manifested during service. The Board finds no evidence of record impeaching these lay witness statements and, thus, these symptoms during service are accepted as facts in this case. Additionally, the VA opinions do not explain why such symptoms in totality did not represent the onset of OSA in service. On the other hand, the Veteran has presented two opinions in support of finding an in-service onset of OSA. Dr. C.B. specifically refers to insomnia as a symptom supporting an in-service onset of apnea which the VA examiner opinions describe as insufficient to establish the onset of OSA in service. The physician’s assistant opinion refers to in-service symptoms of difficulty with sleeping rhythm, lying awake, waking up early, trouble falling asleep, snoring and difficulty breathing asleep as “classic symptoms” which the VA examiners also describe as insufficient to establish the onset of OSA in service. (continued on the next page) Overall, given the deficiencies in all of the opinions, the Board finds that the opinions against an in-service onset of OSA are not more persuasive than the opinion in favor of an in-service onset. The private opinions are rendered by competent professionals and are legally sufficient to provide a basis for an award of service connection for OSA. Thus, the Board has equally persuasive opinion in this case. Resolving reasonable doubt in favor of the Veteran, the Veteran’s OSA first manifested in service. See Wise, 26 Vet. App. at 531 (“By requiring only an ‘approximate balance of positive and negative evidence’..., the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding... benefits.”) The claim, therefore, is granted. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Patrick C. Brady, Attorney Advisor 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.