Citation Nr: 21010124 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 15-31 923 DATE: February 24, 2021 ORDER Service connection for obstructive sleep apnea (OSA) is denied. FINDINGS OF FACT 1. The Veteran served on active duty from September 1994 to February 1995 and from October 1996 to October 2000. 2. OSA was manifested many years after service and is not causally or etiologically related to service. 3. OSA was neither caused nor worsened beyond the natural progression by the service-connected temporomandibular joint (TMJ) disability and/or the service-connected psychiatric disability, including medication used for treatment. CONCLUSION OF LAW OSA was not incurred in service nor is it secondary to a service connected disability. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION In July 2019, the Veteran testified before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims file. In August 2020, the Board remanded the appeal for additional development. The case has now been returned to the Board for further appellate action. Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran contends that symptoms of OSA were manifested during service and continued after service. In the alternative, he contends that OSA was either caused or worsened beyond the natural progression by the service-connected TMJ and/or the service-connected psychiatric disability, including medication used for psychiatric treatment. As to a current diagnosis, the earliest evidence of a OSA diagnosis confirmed by a sleep study was shown in 2013, approximately 13 years after service separation. As such, a current diagnosis is shown. As to an in-service incurrence, the service treatment records (STRs), which are complete, are absent of complaints of, diagnoses of, or treatment for any respiratory problems, OSA, or OSA symptoms during service. The Veteran received in-service treatment for various ailments such as a right toe injury in 1997 and cellulitis in 1999, with no report or complaint of OSA symptoms. The Board finds that OSA is a condition that would have ordinarily been recorded during service, if it had been present; therefore, the lay and medical evidence contemporaneous to service is of significant probative value and weighs against a finding of respiratory injury or disease or OSA symptoms during service. Therefore, the medical evidence does not support service connection on a direct basis. To the extent that the Veteran contends that OSA is related to service, there is no competent medical opinion evidence linking the current OSA to service. A VA medical opinion was not obtained addressing whether any incident, event, or symptoms during service caused the current OSA because such an opinion would be based on the inaccurate factual premise of a respiratory injury or disease or OSA symptoms during service; therefore, such an opinion would be of little probative value. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (where the Board makes a finding that lay evidence regarding an in-service event or injury is not credible, a VA examination is not required); see also Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). The Board has considered whether OSA symptoms began during service and continued thereafter; however, because the account is inconsistent with, and outweighed by, the lay and medical evidence contemporaneous to service showing no respiratory injury, disease, or symptoms during service, no OSA symptoms, diagnosis, or treatment during service, and the post-service lay and medical evidence showing an onset of OSA approximately 13 years after service separation, such an account is not deemed credible, so is of little probative value. As to secondary service-connection, the evidence weighs against a finding that the OSA was either caused or worsened beyond the natural progression by a service-connected psychiatric disability. Specifically, after review of the record and interview and examination of the Veteran, an August 2020 VA examiner found that OSA was neither caused or aggravated by service-connected TMJ and/or the service-connected psychiatric disability. The examiner reasoned that a review of the records showed that the Veteran had a medical history of obesity, and review of the medical literature showed that obesity was consistently the most important risk factor for OSA. The examiner wrote that epidemiological studies had consistently shown that body weight and, in particular, body mass index (BMI) was the strongest risk factor for OSA. The examiner explained that it was estimated that about 70 percent of those with OSA were obese and the prevalence of OSA in obese men and women was about 40 percent. The examiner noted that 26 percent of patients with a BMI greater than 30 and 33 percent of those with a BMI greater than 40 had moderate OSA. The examiner reflected that a large neck circumference was also associated with an increased risk of OSA and explained that a neck circumference of 15.7 inches (40 cm.) or greater may have a greater sensitivity and specificity than BMI in predicting OSA, regardless of the person’s sex. The examiner added that there was nothing in the medical literature to show that there was a direct causative link between OSA and TMJ or psychiatric disabilities, to include any medications used for treatment. The examiner addressed a July 2019 VA medical opinion (discussed below) linking OSA to a psychiatric disability and emphasized that there was nothing in the medical literature to show that there was a direct causative link between OSA and TMJ or psychiatric disabilities, to include any medications used for treatment. The August 2020 examiner concluded that a March 2014 sleep study done with a CPAP showed improvement of OSA, and there was no recent sleep study showing that OSA had worsened compared to the baseline severe OSA in September 2013. The examiner opined that OSA was less likely than not aggravated beyond its natural progression by service-connected TMJ and/or the service-connected psychiatric disability, to include any medication taken for treatment of psychiatric symptoms, based on evidence from records and diagnostic studies showing no evidence of any type of aggravation or condition that was worse than the baseline. The August 2020 VA examiner has medical expertise, had adequate information on which to base the medical opinion, and provided adequate rationale based on an accurate medical history and known medical principles. For these reasons, the August 2020 VA medical opinion is of significant probative value. On the other hand, in July 2019, a VA clinician opined that the OSA was more likely than not to be caused by and exacerbated by a service-connected psychiatric disability as evidenced by numerous studies detailing the relationship between anxiety disorders/PTSD and OSA. In support of the medical opinion, the clinician explained that OSA and PTSD/neurosis were associated by several shared commonalities including sleep deprivation, sleep fragmentation, hyperarousal, physical and psychological stressors, chronic stress, non-refreshing sleep, and altered cognitive and psychological realms. The clinician noted that the serotonergic system had a central role in the regulation of sleep/wakefulness and upper airway muscle tone during sleep, and evidence of serotonergic dysregulation includes frequent symptoms of aggression, impulsivity, dysphoria, and suicidality and the efficacy of serotonin reuptake inhibitors. While the clinician suggested a co-morbidity between OSA and a psychiatric disability, the clinician did not describe a causal relationship or explain why the specific facts of the Veteran’s case supported the medical opinion that OSA was either caused or aggravated beyond the natural progression by the service-connected psychiatric disability. Therefore, the July 2019 medical opinion is assigned lesser probative value. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that a medical opinion that contains only data and conclusions without any supporting analysis is accorded no weight). Also, a September 2013 overnight polysomnography report noted that sedative medications may worsen OSA, and the clinical records show that the Veteran was prescribed medication to treat symptoms of insomnia and anxiety associated with the service-connected psychiatric disability; however, the use of speculative terminology (i.e., may worsen) constitutes a statement of mere possibility and is not a statement or probability, so it has no probative value and is insufficient to establish the necessary nexus between the Veteran’s OSA and the service-connected psychiatric disability. See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (a letter from a physician indicating that the veteran's death "may or may not" have been averted if medical personnel could have effectively intubated the veteran was held to be speculative); Bloom v. West, 12 Vet. App. 185, 186-187 (treating physician's opinion that service "could have" precipitated a disability found too speculative); Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (holding evidence favorable to the veteran's claim that does little more than suggest a possibility that his illnesses might have been caused by service radiation exposure is insufficient to establish service connection); Obert v. Brown, 5 Vet. App. 30, 33 (1993) (a physician's statement that the veteran may have been having some symptoms of multiple sclerosis for many years prior to the date of diagnosis also implied "may or may not" and was deemed speculative). Although the Veteran has asserted that OSA was causally related to service or was caused or aggravated by service-connected TMJ and/or psychiatric disability, he is a lay person and, under the specific facts of this case that include no in-service OSA symptoms, and documented post-service onset of symptoms and diagnosis of OSA many years after service, does not have the requisite medical training or credentials to be able to render an opinion regarding the cause of his OSA. The etiology of the Veteran’s OSA is a complex medical etiological question dealing with the origin and progression of the respiratory system; OSA is a disorder diagnosed primarily on symptoms, clinical findings and physiological testing; and would require knowledge of a complex interaction or relationship between the different body systems physical (respiratory) disorder of OSA with the psychological impairments of the service-connected TMJ and/or the service-connected psychiatric disability. See Waters v. Shinseki, 601 F.3d 1274, 1277-1278 (Fed. Cir. 2010) (recognizing similarly the complexity of a nexus between a psychiatric disorder and a physical disorder). While the Veteran, as a lay person, is competent to report respiratory symptoms that he experiences at any time, he is not competent to opine on whether there is a link between OSA, symptoms of which were manifested many years after service, and active service or the service-connected TMJ and/or psychiatric disability based on secondary causation or secondary aggravation because such opinions require specific medical knowledge and training. For these reasons, the Veteran’s unsupported lay opinion is of little probative value and is outweighed by the VA medical opinion evidence showing no causal relationship between service or the service-connected TMJ and/or psychiatric disability and OSA, and no aggravation relationship between service-connected TMJ and/or psychiatric disability and OSA. Thus, the evidence weighs against a finding that OSA was caused by active duty or was otherwise caused or worsened beyond the normal progression by the service-connected TMJ and/or psychiatric disability. In consideration of the foregoing, the preponderance of the lay and medical evidence that is of record weighs against the appeal of service connection for OSA, including as secondary to the service-connected TMJ and/or psychiatric disability; consequently, the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Palmer, 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.