Citation Nr: 21009201 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 14-40 490 DATE: February 19, 2021 ORDER Entitlement to service connection for obstructive sleep apnea, to include as secondary to prostate cancer, is denied. FINDING OF FACT The evidence does not show any connection between the Veteran’s military service or his service-connected prostate cancer and his obstructive sleep apnea. CONCLUSION OF LAW The criteria for entitlement to service connection for obstructive sleep apnea, to include as secondary to prostate cancer, have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty military service from August 1965 to August 1968, including service in the Republic of Vietnam. This matter was previously before the Board in December 2018, when it was remanded for a VA examination to be conducted by a provider with experience in addressing sleep apnea. The Veteran was examined in September 2019 by a provider with 20 years of experience in the field and the Board finds that the remand directives have been satisfied and no further development is required. Generally, to establish a right to compensation for a present disability, a Veteran must 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, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All three elements must be established by competent and credible evidence in order that service connection may be granted. Service connection is also provided for a disability which is proximately due to, the result of, or aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310. The Board notes that the Veteran had service in the Republic of Vietnam and is therefore presumed to have been exposed to herbicide agents. The law provides for service connection for a specific list of disabilities which have been found to be linked to such exposure; obstructive sleep apnea is not one of the listed disabilities. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. The Veteran may still prove entitlement based on exposure if competent medical evidence supports such a causal relationship. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Entitlement to service connection for obstructive sleep apnea, to include as secondary to prostate cancer The Veteran seeks service connection for obstructive sleep apnea and contends that this is due to his service-connected prostate cancer with erectile dysfunction. The evidence shows that the Veteran was first diagnosed with sleep apnea in 2007, nearly 40 years after separation. At the VA examination in September 2019, the examiner considered the history provided by the Veteran and obtained information regarding the Veteran’s time in service. (See C&P Exam, 09/27/2019.) The examiner also considered the Veteran’s treatment records and his assertions regarding sleep apnea and prostate cancer. The examiner offered the opinion that the Veteran’s obstructive sleep apnea did not have its onset in service because he did not describe any of the manifestations of sleep apnea during his time in service. In addition, the condition was first diagnosed many years after service with no evidence of continuous symptomatology for many years following service separation. The examiner considered the Veteran’s service in Vietnam and noted that there was no scientific evidence suggesting any link between exposure to herbicidal agents and subsequent development of obstructive sleep apnea. Finally, the examiner explained that, despite anecdotal evidence provided by the Veteran of others who have both sleep apnea and prostate cancer, there was no causal or aggravation-type relationship between the two disabilities. Specifically, the examiner noted that the Veteran’s prostate is “anatomically separate and distinct” from his upper airway. Because obstructive sleep apnea is due to collapse of the upper airway during sleep breathing, there is no possibility that the Veteran’s prostate cancer is causally related to his obstructive sleep apnea. The Veteran’s representative has submitted information from medical treatises that are asserted to show a relationship between sleep apnea and the Veteran’s prostate cancer and erectile dysfunction. (See Appellate Brief, 12/01/2020.) Specifically, the representative cited a study that mentions that men who experience prostate cancer and erectile dysfunction “often also suffer from depression and sleep disorders.” Also cited was a study noting that cancer patients are “at great risk of developing insomnia and disorders of the sleep-wake cycle.” In addition, the representative noted that individuals with pain, including from cancer, have been shown to have insomnia which coincides with the onset of chronic pain. The Board has considered all of these citations and notes that they are not relevant to the issue on appeal. The Veteran seeks service connection for obstructive sleep apnea, not for insomnia or disorders of the sleep-wake cycle. “Obstructive sleep apnea is ‘sleep apnea resulting from collapse or obstruction of the airway with the inhibition of muscle tone that occurs during R[apid] E[ye] M[ovement] sleep. In adults it is seen primarily in middle-aged obese individuals, with a male predominance.’” Adams v. Wilkie, No. 18-1625, slip op. at 1, n. 1 (U.S. Vet. App. Feb. 25, 2019). “Sleep apnea is ‘transient periods of cessation of breathing during sleep.’” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 117 (32d ed. 2012). Adams v. Wilkie, No. 18-1625, slip op. at 1, n. 1 (U.S. Vet. App. Feb. 25, 2019). This disability is distinct from insomnia. Therefore, while the Veteran has been treated for prostate cancer with erectile dysfunction and periods of chronic pain, the studies cited with respect to these disabilities do not address obstructive sleep apnea. In addition, the studies cited do not assert a causal relationship between prostate cancer and insomnia; rather, they refer to a correlation between the disabilities. As such, they are not probative on this issue. The Board notes that medical articles or treatises can be probative evidence when combined with an opinion of a medical professional if the medical article or treatise deals with generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least “plausible causality” based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999). In this instance, the treatise evidence has not been shown by any medical opinion to be relevant to the Veteran’s case. Instead, the VA examiner specifically refuted any such relationship in the September 2019 opinion and the rationale provided – lack of any anatomical connection between the upper airway and the prostate – is satisfactory to the Board. (Continued on the next page)   For all of the reasons discussed, the Board finds that the preponderance of the evidence is against any relationship between the Veteran’s military service or any service-connected disability and his current disability of obstructive sleep apnea. The benefit of the doubt standard does not apply here, and the claim is denied. 38 U.S.C. § 5107(b). Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Cheryl E. Handy 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.