Citation Nr: 21010080 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 18-04 827 DATE: February 24, 2021 ORDER Service connection for obstructive sleep apnea (OSA), including as secondary to post-traumatic stress disorder (PTSD), is denied. FINDING OF FACT The probative medical evidence indicates the Veteran’s current OSA was not caused or aggravated by his service-connected PTSD and is not otherwise related to service. CONCLUSION OF LAW The criteria for service connection for OSA secondary to PTSD have not been met. 38 U.S.C. §§ 1110, 5107 (b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 1967 to November 1973. The Veteran initially requested a videoconference hearing in his January 2018 Substantive Appeal (VA Form 9). In a June 2020 statement, he withdrew his hearing request in writing. See 38 C.F.R. § 20.702 (e) (2018). In November 2020, the Board of Veterans’ Appeals (Board) remanded this matter for an additional medical opinion, which was completed in December 2020. Review of the completed development reveals that substantial compliance with the remand directives was obtained. Stegall v. West, 11 Vet. App. 268 (1998). 1. Service connection for OSA Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). “To establish a right to compensation for a present disability, a Veteran must show: ‘(1) the existence of a present disability; (2) 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.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310 (b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination about the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish observable symptoms, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. OSA is a specific medical condition defined as the “cessation of breathing resulting from the collapse or obstruction of the airway with the inhibition of muscle tone that occurs during REM sleep.” See Dorland’s Illustrated Medical Dictionary 116-17 (32nd ed. 2012). The Veteran was diagnosed with OSA following a July 2009 VA sleep study. He contends his OSA was caused or aggravated by his service-connected PTSD. The Veteran’s service treatment records (STRs) are silent for reports, treatment, or diagnoses of OSA or related symptoms. In his August 1967 pre-induction report of medical history, the Veteran reported being told he had asthma in childhood, was never treated for the condition, and did not have symptoms at the time of the examination. In his October 1973 separation physical, the Veteran’s nose, mouth and throat, and lung and chest evaluations were normal. The attending physician noted a diagnosis of essential hypertension and “occasional premature atrial contractions.” There were otherwise no references to OSA, breathing difficulties (other than asthma noted once in the pre-induction examination), or sleep disturbances in the STRs. Non-VA treatment records dated from 1996 to 2000 indicate continuous treatment for hypertension, high cholesterol, and asthma, but do not document OSA. During a December 2006 VA psychiatric examination, the Veteran reported having sleep problems for 36 years. He reported symptoms of nightmares and difficulty falling and staying asleep. During the July 2009 VA sleep study, the Veteran reported insufficient sleep and witnessed apneas. The sleep study report noted the Veteran’s history of hypertension, PTSD, and a possible nightmare disorder, and the attending clinician recommended weight loss and avoidance of alcohol and sedatives. A May 2011 VA nursing note reflects that the Veteran reported difficulty exercising due to asthma and shortness of breath, and was counseled on diet, weight control, and limiting alcohol consumption. During an October 2011 VA psychiatric evaluation, the Veteran reported symptoms of night sweats, combat-related nightmares, physical restlessness, and three to four hours of interrupted sleep per night. He indicated he had been diagnosed with sleep apnea and used a CPAP machine every night. He denied other sleep-related symptoms. A September 2013 independent mental status examination report indicated that the Veteran reported sleep patterns marked by incessant insomnia, intermediate and early awakening at around 3:00 a.m., and no hypersomnia. He also reported nightmares, night sweats, and “waking up screaming.” The Veteran stated he had poorly controlled high blood pressure but denied any other medical issues other than his PTSD. At the October 2014 Board hearing, the Veteran reported experiencing auditory and visual hallucinations related to his PTSD. He continued to report sleep difficulty due to these symptoms and that even small noises startled him and interrupted his sleep. An August 2016 VA PTSD evaluation report indicated the Veteran gave contradictory statements regarding whether his sleep impairment has occurred since his active service. The VA examiner noted the Veteran had high blood pressure and cholesterol since service. The examiner further noted the Veteran had a low energy level due to lack of sleep and may have had undiagnosed health problems that also impacted his energy level. In a December 2017 medical opinion, a VA nurse practitioner opined that the Veteran’s OSA was less likely than not caused by his PTSD. She noted that risk factors of OSA include being male, overweight and over the age of 40. She indicated that research has shown PTSD may cause sleep disturbance but does not cause physical blocking of the airway which results in apnea. She further stated that untreated sleep apnea may increase PTSD, but PTSD does not increase sleep apnea. The nurse practitioner did not discuss the Veteran’s specific medical history or cite her research. A memorandum submitted by the Veteran’s counsel in September 2020 asserted that medical studies have demonstrated a strong association between the development of OSA in veterans with PTSD. The memorandum acknowledged that further studies will be required to conclusively determine the exact cause of OSA rates among veterans with PTSD. In a September 2020 medical opinion, a private orthopedic doctor concluded the Veteran’s OSA was secondary to his PTSD. The doctor noted the Veteran’s lay statements that he had nightmares, night sweats, and sleeplessness both during and after service. The doctor also opined that the Veteran’s sleep disorder, major depressive disorder, and social difficulties “set the stage” for sleep apnea. He cited medical journal articles that found a correlation between PTSD symptoms and an increased risk of screening positive for sleep apnea. He also highlighted an article suggesting PTSD and sleep apnea are connected by certain factors, including disturbed sleep in combat, prolonged sleep deprivation, sleep fragmentation, and hyperarousal due to physical and psychological stressors of combat. VA obtained an additional medical opinion pursuant to the November 2020 Board remand. In the December 2020 opinion, a VA-contracted physician concluded that the Veteran’s OSA was less likely than not caused or aggravated by his PTSD. The VA physician indicated that an examination of the Veteran was not necessary as the existing clinical evidence was sufficient to render an opinion. The physician indicated that he reviewed the evidence specifically highlighted in the November 2020 remand, which included the September 2020 private opinion and the articles it cited. He noted that at the time of the July 2009 sleep study, the Veteran had a body mass index (BMI) of over 25, which indicated the Veteran was overweight or obese. The physician explained that obesity is the major cause of OSA and concluded the Veteran’s history of obesity was the most likely cause of his OSA. The physician acknowledged that medical studies have suggested an increased incidence of OSA in patients with PTSD, but he was not aware of any medical literature establishing a causal relationship between the two conditions. The preponderance of the medical evidence is against finding that the Veteran’s current OSA was caused or aggravated by his service-connected PTSD. The September 2020 medical opinion has low probative value. The examiner cited lay statements concerning the Veteran’s psychiatric sleep-related symptoms but did not explain how these caused the physiological diagnosis of OSA. The medical studies cited in the opinion discussed only an “increased incidence,” or correlation between OSA and veterans with PTSD, but did not address the cause of this phenomenon. Additionally, the opinion was prepared by a doctor specializing in orthopedic medicine. See Sklar v. Brown, 5 Vet. App. 140 (1993) (observing that a specialist’s opinion as to a medical matter outside of his or her specialty to be given little weight). In comparison, the January 2020 VA opinion is highly probative. The examiner explained that while the medical literature suggested a correlation between OSA and PTSD, the literature did not support a causal relationship between the two conditions. He further explained that obesity was the likely cause of the Veteran’s OSA, specifically citing the Veteran’s BMI measured at the time he was diagnosed with OSA. Ultimately, the December 2020 opinion is more probative because it provided a factually and medically-based rationale as to the cause of the Veteran’s OSA. The Board has considered and weighed the probative value of the Veteran’s lay assertions of sleep difficulty during and since active service. His reports of sleep-related symptoms are supported by lay statements from his son, wife, a coworker, and a commanding officer. Together, they described symptoms of insomnia, nightmares, night sweats, difficulty falling and staying asleep, irritability, and restless sleep. However, the as the VA examiner reported, a correlation of symptom between two disorders does not equate to a causal relationshipe. While the Veteran is competent to report these symptoms, as a layperson he is not competent to give an opinion on the relationship between his PTSD, a psychological disorder, and OSA, a physiological disorder. As other medical evidence demonstrates, the Veteran has independent risk factors for OSA See Jandreau, supra. As the preponderance of the evidence indicates the Veteran’s OSA was not caused by his service-connected PTSD or otherwise related to service, the claim is denied. Where, as here, the medical evidence against the claim substantially outweighs that in favor of the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Hiaasen 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.