Citation Nr: 21008050 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 13-03 836 DATE: February 11, 2021 ORDER Service connection for obstructive sleep apnea is denied. FINDINGS OF FACT 1. The Veteran has a current diagnosis of mild obstructive sleep apnea (sleep apnea). 2. There was no in-service respiratory or sleep-related injury or disease. 3. The current sleep apnea did not begin during service and is not related to service. 4. The Veteran is service connected for posttraumatic stress disorder (PTSD). 5. The PTSD did not cause or worsen in severity beyond a normal progression the sleep apnea. CONCLUSION OF LAW The criteria for service connection for sleep apnea, including as secondary to PTSD, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant, had active duty service from February 1986 to February 2006. The instant case is on appeal from a Department of Veterans Affairs (VA) Regional Office (RO) rating decision that, in pertinent part, denied service connection for sleep apnea. The case has been before the Board of Veterans’ Appeals (Board) previously. Most recently, the case was remanded to obtain updated nexus opinions. After a review of the record, the Board finds that the requested development was adequately completed on remand and the case is ripe for adjudication. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA’s duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Board finds that the duties to notify and to assist have been met. Service Connection Legal Criteria Direct Service Connection Service connection can be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may 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 generally requires (1) competent evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between the claimed in-service disease or injury and the current disability. Secondary Service Connection Service connection may be granted for a condition that is caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310. To prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) competent nexus evidence establishing a connection between the current disability and the service-connected disability, which relates to either causation or aggravation. See id.; Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Service Connection for Sleep Apnea The Veteran contends generally that current sleep apnea is a symptom of the service-connected PTSD. See January 2013 VA Form 9. The evidence shows a current diagnosis of mild obstructive sleep apnea. See August 2018 Sleep Medicine Note. Accordingly, the present disability requirement is met. After a review of the record, lay and medical, the Board finds that the weight of the evidence is against service connection for sleep apnea, both on a direct service connection theory, and as secondary to the service-connected PTSD. The weight of the evidence is against finding an in-service respiratory or sleep-related injury or disease. In an October 2005 separation report of medical examination, there was no history or complaints of sleep or respiratory issues. In an October 2005 separation report of medical history, which is the document contemporaneous to service in which the Veteran marks whether he has or has had specific diseases or injuries, the Veteran denied respiratory issues or frequent trouble sleeping. In a February 2005 post-deployment health assessment, the Veteran marked “no” for still feeling tired after sleeping and marked “yes during” (the deployment) for headaches and numbness or tingling in the hands or feet. He stated that in general his health is very good and that he had no questions about his health. While the Veteran marked “yes, during” for still feeling tired after sleeping in the April 2004 post-deployment health assessment, the label as “during” means that he was not experiencing the symptom after deployment ended (in contrast with experiencing it currently). There were no reports of sleep or respiratory symptoms in the February 1998 report of medical history, the September 1994 report of medical examination, the September 1988 report of medical examination, the September 1988 report of medical history, and the enlistment January 1986 report of medical examination. The complete service treatment record does not show sleep-related or respiratory symptoms. There was treatment for a wide range of injuries and diseases, to include ganglion cysts (leading to wrist surgery), thigh pain, excessive callouses on the feet, left ankle injury, anemia, hemorrhoids, cervical musculature spasms, upper respiratory infection, bronchitis, onychomycosis, lacerations, pulled muscle in neck, back muscle strain, a puncture wound, upper respiratory infections, skin disease, ear disorder (leading to bilateral auricular reconstruction), myofascial syndrome, cellulitis, and an inguinal hernia (leading to surgery). Sleep apnea and sleep-related symptoms including daytime sleepiness or fatigue are conditions that would be recorded in the medical records had treatment been sought and the medical record is complete. Accordingly, the absence of treatment for sleep apnea or for sleep or respiratory-related illnesses (other than upper respiratory infections) both in the service treatment records and in the reports of medical examinations and reports of medical history (to include at service separation) weigh against a finding of an in-service sleep-related injury or disease. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (stating that VA may use silence in the service treatment records as evidence contradictory to a veteran’s assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred) (Lance, J., concurring); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (citing Fed. R. Evid. 803(7) for the proposition that the absence of an entry in a record may be evidence against the existence of a fact that would ordinarily be recorded). There is a February 1996 service personnel record that pertained to a motor vehicle accident that the Veteran was involved in while traveling late at night after becoming fatigued. The line of duty determination was that the injury was sustained in the line of duty. The service personnel record notes that the Veteran was not aware of his surroundings and rolled his vehicle over a barbed wire fence and landed in a ditch. The Veteran received overnight treatment in a hospital but had no significant injuries. The record does not suggest that this is a sign of sleep apnea, as the notation was that it was late at night, when sleepiness would ordinarily be expected. The weight of the evidence also shows that the current sleep apnea, which was diagnosed years after service, did not begin during service and is not related to service. Regarding the question of nexus between current sleep apnea and service, an October 2020 VA examiner opined against such a nexus. The VA examiner noted that there were no sleep studies that were positive for sleep apnea until August 2018, which noted only mild obstructive sleep apnea, with an October 2017 sleep study that was negative and a 2008 sleep study that the Veteran reported was “okay.” The Veteran had previously reported daytime somnolence, but he stated to the VA examiner on ACE interview that the excessive daytime sleepiness has resolved with increasing his sleep time. The Veteran reported that because of concerns about snoring and excessive daytime sleepiness he underwent the sleep study in 2008. The October 2020 VA examiner reasoned that, if the Veteran had sleep apnea in the military or in the years that followed, it is unlikely that he would have been discovered to have only mild sleep apnea on the August 2018 sleep study, particularly after significant weight gain following his military service. To the October 2020 VA examiner, the evidence did not support that the Veteran’s sleep apnea began in or was caused by or due to military service. The Veteran had previously alleged that he had been told that he would stop breathing, gasp for air during the night, and snore daily, so the October 2020 VA examiner was asked to address these symptoms. The October 2020 VA examiner noted that the post-deployment health assessment in 2005 and separation examination are negative for sleep problems or feeling tired after sleeping. The October 2020 VA examiner stated that observations of snoring and what appears to be gasping during sleep are very subjective elements regarding an observer’s description of sleep and cannot in isolation be used to identify or diagnose sleep apnea. Snoring is deemed to be remarkably common in the general population and the October 2020 VA examiner noted that it is not unusual to observe cessation of snoring followed by what appears to be cessation of breathing when, in fact, it is merely the cessation of snoring. The October 2020 VA examiner also noted that the Veteran had a history of alcohol use during service and that alcohol can impair sleep, predisposing to snoring and possibly even reducing ventilation/depth of respiration. The October 2020 VA examiner stated that, while it is not possible to completely explain the contentions of snoring, gasping for air, and cessation of breathing this many years later, the overwhelming evidence based on medical records and the Veteran’s own testimony of a normal sleep study in 2008 along with documentation of a negative sleep study in 2017, followed by a 2018 sleep study showing only mild sleep apnea, supports that the Veteran did not have sleep apnea while in service or in the many years that followed. The Veteran had also contended at one point that he had daytime somnolence with occasional morning headaches. The October 2020 VA examiner noted again that the sleep medicine specialist in 2018 stated that the Veteran’s excessive daytime sleepiness had resolved with increasing his sleep time. The Veteran reported getting greater than 7-8 hours of sleep nightly, having a sleep latency of a few minutes, waking once during the night due to nocturia, and waking at 3:30 in the morning feeling rested. During today’s examination and in that note, the Veteran denied daytime sleepiness and did not report headaches. The October 2020 VA examiner stated that he could not provide an opinion with respect to these specific symptoms when the Veteran was not endorsing them. Given the absence of treatment during service and the negative nexus opinion, the Board finds that the appeal for direct service connection must be denied. The Veteran also contends that the service-connected PTSD caused or worsened in severity beyond a natural progression (aggravated) the obstructive sleep apnea. Concerning the question of secondary aggravation, the October 2020 VA examiner stated that the Veteran’s PTSD symptoms have improved over time. The weight of the evidence was against the presence of sleep apnea during the period in which the Veteran’s PTSD symptoms were most pronounced and the Veteran was not diagnosed with sleep apnea until July 2018, with two prior sleep studies (2008 and 2017) both negative for sleep apnea. According to the October 2020 VA examiner, this shows an inverse relationship between the Veteran’s PTSD and sleep apnea—that is, the Veteran’s sleep apnea developed when his PTSD symptoms were most stable. Accordingly, there is not an aggravation relationship between the PTSD and the sleep apnea. Concerning secondary causation, because the PTSD did not worsen the sleep apnea in severity, by necessary logical inference it also did not cause the sleep apnea. That is, if the PTSD did not act in a negative way to even worsen (aggravate) the sleep apnea, the same lack of activity of PTSD, a psychiatric disorder, upon the sleep apnea as shown by the inverse relationship means the PTSD did not act to cause the sleep apnea, a physical (mechanical) disorder. A September 2019 VA examiner also noted that there is no scientific proof (citing to UpToDate, a medical educational website) that any type of mental health condition could cause or make worse a mechanical lung condition. The September 2019 VA examiner had consulted with a sleep specialist/pulmonologist, who agreed with the conclusion. In July 2013, a VA examiner concluded similarly, stating that sleep apnea is a breathing disorder and that there is no known connection between PTSD and sleep apnea. The July 2013 VA examiner also noted that the sleep problems related to PTSD (which the Veteran has) are not related to breathing difficulties. In short, there is not a secondary causation relationship between the PTSD and the sleep apnea. As there is no secondary relationship (causation or aggravation) and there is no direct relationship, the appeal for service connection for sleep apnea must be denied. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Smith, 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.