Citation Nr: 21010253 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 11-24 898 DATE: February 24, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is granted. FINDING OF FACT After affording the Veteran the benefit of the doubt, the evidence is at least evenly balanced as to whether the Veteran’s OSA is caused by his service-connected posttraumatic stress disorder (PTSD), including from by weight gain resulting from his service-connected PTSD. CONCLUSION OF LAW The criteria for entitlement to service connection for OSA have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from November 1988 to December 1989 and November 1990 to May 1991. These matters come before the Board of Veterans’ Appeals (Board) on appeal from October 2010 and September 2012 rating decisions of the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In October 2010, the AOJ denied service connection for sleep apnea. The Veteran submitted a statement in December 2010 requesting that the AOJ reconsider the denial of the claim in the October 2010 rating decision. In September 2012, the AOJ confirmed the denial of service connection for sleep apnea; and the Veteran appealed this rating decision. The Veteran testified before the undersigned Veterans Law Judge at a Board videoconference hearing in June 2017. The Board had remanded the claim in April 2017, September 2017, June 2019, and August 2020. The AOJ having substantially complied with the Board remand directives, the case is now returned to the Board for appellate review. The Veteran submitted additional evidence in November 2020 with a waiver of initial AOJ consideration of the evidence. 1. Entitlement to service connection for sleep apnea, including as secondary to service-connected posttraumatic stress disorder (PTSD) The Veteran is claiming that his OSA is secondary to his service-connected PTSD. Specifically, the Veteran contends that his service-connected PTSD caused depression, which caused him to overeat, which caused obesity, which caused sleep apnea. He does not assert that sleep apnea was manifested in service. At his June 2017 Board hearing, the Veteran testified that he was first diagnosed with sleep apnea in 2007. He stated that his PTSD caused depression, which caused him to eat more, which caused weight gain and sleep apnea. He said he gained 50 pounds or more between 1991 to 2007, after returning from the Gulf War. He said his depression and stress caused him to eat more. The Board notes that although obesity, per se, is not a disease or injury for purposes of 38 U.S.C. §§ 1110 and 1131 and therefore may not be service connected on a direct or secondary basis, obesity may be an “intermediate step” between a service-connected disability and a current disability that may be connected on a secondary basis (1) if a previously service-connected disability caused him to become obese; (2) that obesity was a substantial factor in causing secondary disability; and (3) the secondary disability would not have occurred but for the obesity. See VAOPGCPREC 1-2017. To establish an entitlement to service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence 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. 38 C.F.R. § 3.303 (a). As is pertinent to the Veteran’s claim, to meet the criteria for secondary service connection, a veteran must prove that there is (1) a current disability that is not already service-connected; and (2) at least one service-connected disability; and (3) evidence that the non-service connected disability is either proximately due to or the result of a service-connected disability, or aggravated (increased in severity) beyond its natural progress by a service connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Initially, the Board determines that after resolving all doubt in the Veteran’s favor, service connection for OSA is warranted. Because the Veteran has not asserted that this disability is directly due to his active duty, and because the Board can adjudicate this matter under the theory of secondary service connection, the Board need not discuss direct service connection below. Turning to the requirements for entitlement to service connection on a secondary basis, the Veteran has a current diagnosis of obstructive sleep apnea. A July 2012 VA examination report shows that the Veteran has a current disability of OSA. Thus, the Veteran has met the first criterion for entitlement to service connection, in that he has a current diagnosis. Turning to the second requirement, as noted above, the Veteran has indicated that his OSA is related to his service-connected PTSD. The Veteran is currently service connected for PTSD. Thus, the Veteran has met the second requirement for entitlement to service connection, in that he has a current service-connected disability. Turning to the final criterion, the Veteran must demonstrate a causal relationship between the present OSA and the service-connected disabilities. 38 C.F.R. § 3.303 (a). In that regard, and apart from the lay evidence of record, the claims file includes two medical opinions from VA examiners, which did not attribute the current OSA to his service-connected PTSD, and one medical opinion from a medical professional who determined that the Veteran’s OSA was caused by his PTSD, including from the weight gain due to his service-connected PTSD. A private examiner in November 2020 found that the Veteran’s PTSD through both direct and indirect mechanisms (such as unhealthy habits like over-eating, which led to his obesity), significantly increased his risk for developing OSA. Thus, the examiner found that it was at least as likely as not that the Veteran’s OSA developed secondary to his PTSD. The rationale was the PTSD caused fragmented sleep and sufferers would wake up too easily. This did not allow sufficient time for the accumulation of respiratory stimuli to activate upper airway dilator muscles and promote pharyngeal patency. It was noted that the throat would become unstable and thus PTSD caused or worsened the airway condition because a weakened throat was the underlying problem in OSA. The examiner further noted that the alteration of brain chemicals experienced by PTSD victims also led to the anxiety, hypervigilance, exaggerated startle response, and sleep disturbances recognized by the Diagnostic and Statistical Manual of Mental Disorders as critical factors required for diagnosing PTSD. It was noted that research had shown a strong correlation between anxiety and the severity of OSA. The examiner noted that this association was clearly parallel in the Veteran’s case who, as a result of his mental health condition, had struggled with anxiety and exaggerated startle response, and therefore was at an increased risk for OSA. The examiner also noted that individuals with PTSD had a predisposition to obesity. This relationship was independent of the known metabolic side effects of the psychotropic medications used to treat PTSD symptoms. Studies associated the risk of PTSD patients developing obesity to poor health habits including substance abuse, increased food intake, and lack of exercise. The examiner found that obesity was a major risk factor for the development of OSA. Studies had shown that a 10 percent change in body weight was associated with a parallel change of approximately 30 percent in the apnea-hypopnea index, the major index of sleep apnea severity. Also, a 10 percent increase of baseline weight was associated to a six-fold increased risk of progression of OSA; and an equivalent weight loss could result in a more than 20 percent improvement in OSA severity. It was noted that the Veteran had a well-documented history of binge eating/ overeating due to anxiety symptoms related to his PTSD. The importance of PTSD as a causal factor in the development of the Veteran’s OSA was further supported by the fact that the Veteran reported that he still struggled with poor sleep and had difficulty using the CPAP mask throughout the night. Studies had shown that CPAP usage and adherence were lower in PTSD veterans with OSA than veterans without PTSD. Mask discomfort and claustrophobia was the primary reason reported for nonadherence in these patients. A November 2019 VA medical opinion was provided that the Veteran’s OSA was less likely as not due to or aggravated by his service-connected PTSD or a left ankle disability, as neither of these conditions patho-physiologically caused OSA. It was noted that based on the National Institutes of Health (NIH), OSA was defined as chronic episodes of interrupted breathing during sleep, which occurred as a result of airway collapse or blockage. It was commonly accepted in the medical literal to include such medical organizations as NIH and Mayo Clinic, that airway collapse or blockage occurred due to relaxation of the muscles in the posterior throat. As a result, there was a reduction in airflow, which in turn led to lower levels of oxygen in the blood stream. This stimulated the brain to trigger an arousal sufficient to initiate reopening of the airway and an adequate breath to restore blood oxygen levels. The examiner noted that OSA was an obstructive process of the airway, which was due to an anatomic process in which the airway became obstructed and was in no way related directly or indirectly to PTSD or a left ankle disability, as neither condition caused this type of pathology. Therefore, the Veteran’s current diagnosis of OSA was less likely as not caused by or aggravated by the Veteran’s service-connected PTSD or left ankle disability, as neither condition would provide an etiology for airway collapse or blockage as a result of relaxation of the muscles of the posterior throat. It was finally noted that the question related to PTSD as a causative factor for obesity would require a VA mental health examiner’s response. A July 2020 VA examination report shows that the Veteran’s OSA was less likely than not proximately due to or the result of the Veteran’s service-connected PTSD. The rationale was that OSA is a structural condition of the upper airway collapse during sleep, which is not caused by PTSD. The examiner also found that OSA was not aggravated beyond its natural progression by his service-connected PTSD. It was noted that obesity was a multi-factorial process and the examiner could not say that the Veteran’s PTSD alone, and or with his medication, caused his obesity. The examiner noted that a substantial proportion of claimants with OSA were not obese and that these claimants were challenging to treat with existing therapies as they were less adherent and compliant with CPAP therapy. Non-anatomical contributors to OSA, such as low threshold for arousal, were likely to be particularly important in OSA pathogenesis in nonobese claimants with OSA. These findings had important implications for the pathogenesis of OSA in nonobese claimants and potential therapeutic targets for this group of claimants. There are two other medical opinions. However, the Board, as noted in its September 2017 remand, finds these opinions inadequate. Specifically, in November 2010, Dr. M., a board-certified physician in pulmonary disease and sleep medicine, stated that he currently treated the Veteran for OSA, that the Veteran had a history of PTSD and depression after serving in the Gulf War in 1991, and reported a 40-pound weight gain during this time. He also reported experiencing sleep disturbances which led him to undergo a nocturnal polysomnogram, which showed OSA. Dr. M. opined that the Veteran’s PTSD and depression led to a substantial weight gain which ultimately led to a diagnosis of OSA, and that the Veteran’s OSA was secondary to his PTSD. Dr. M.’s opinion appears to be based solely on the Veteran’s reported history and is not supported by an adequate rationale and is therefore inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). A report of a July 2012 VA examination reflects that the examiner diagnosed OSA and opined that there is no direct medical link per the medical literature between PTSD and sleep apnea, and therefore his sleep apnea is less likely than not secondary to his service-connected PTSD. This medical opinion is inadequate as the examiner did not provide a medical opinion as to whether current sleep apnea was aggravated by service-connected PTSD. See 38 C.F.R. § 3.310 (b). Moreover, the examiner did not consider the Veteran’s theory that PTSD caused overeating, then obesity, then sleep apnea. Nonetheless, with respect to the medical opinions in November 2020, November 2019, and July 2020, the Veteran’s claims file includes a positive nexus opinion, but also a negative nexus opinion regarding the causal link between the Veteran’s OSA and his service-connected PTSD. Each opinion is extensive and generally well-researched. Thus, after affording the Veteran the benefit of the doubt, the Board finds that the evidence is at least evenly balanced as to whether his OSA is caused by his service-connected PTSD, including due to weight gain resulting from his service-connected PTSD.   Accordingly, after affording the Veteran the benefit of the doubt, the Board concludes the evidence is at least in equipoise as to the establishment of service connection for OSA is warranted. Thus, the claim must be granted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sarah B. Richmond, 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.