Citation Nr: 21010269 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 13-32 793 DATE: February 24, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected disabilities is denied. FINDING OF FACT OSA was not manifested in service, and the Veteran’s current OSA is not shown to be etiologically related to his service, or to have been caused or aggravated by a service-connected disability. CONCLUSION OF LAW Service connection for OSA, to include as secondary to service-connected disabilities, is not warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from June 2000 to June 2005. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision. In November 2014 a video conference hearing was held before the undersigned; a transcript is in the record. In June 2015, November 2017, November 2019 and October 2020 the matter was remanded for additional development. [A February 2015 rating decision denied service connection for obesity as secondary to service-connected disabilities.] Entitlement to service connection for OSA, to include as secondary to service-connected disabilities is denied. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A disease first diagnosed after discharge may be service connected if all the evidence establishes that it was incurred in service. 38 C.F.R. § 3.303 (d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In September 2014 correspondence, the Veteran’s chiropractor noted the Veteran’s neck and back pain has had a negative effect on the quality of his sleep as well as his trouble with OSA. In November 2014 correspondence, the Veteran stated that while OSA was not diagnosed until 2009, be believed he had OSA earlier. He stated that his service-connected disabilities led to a weight gain of 70 pounds from 2000 to 2012. A November 2014 lay statement by the Veteran’s spouse indicates that he stopped working out due to pain from his service-connected disabilities. She noted he often snores and seems to stop breathing in his sleep. A November 2014 lay statement by the Veteran’s grandmother notes he was active prior to service, and did not have any medical issues prior to service. A November 2014 lay statement notes the Veteran snored all the time from 2006 to 2007. At the November 2014 video conference hearing the Veteran testified that OSA was not diagnosed during service; he asserted that his various service-connected disabilities led to obesity which caused his OSA. He also testified that he had reviewed medical literature indicating that untreated OSA could cause depression. In a September 2016 medical opinion, the consulting provider noted that OSA was not diagnosed in service, and that the Veteran was claiming service connection as secondary to his service-connected musculoskeletal, mental health, dermatological, and genitourinary disabilities. The provider explained that OSA was most caused by airflow obstruction from the oropharynx to the lungs (caused by either enlargement of the neck muscle mass which when supine obstructs airflow), and can also be caused by a stroke. The clinician opined that it was less likely than not that the Veteran’s OSA is due to his military service or his service-connected disabilities. In a November 2017 addendum medical opinion, the consulting provider opined that it was less likely than not that the Veteran’s OSA was caused by his service or service-connected nonspecific chronic idiopathic pleurisy. In a February 2019 medical opinion, the consulting provider opined that it was less likely than not that the Veteran’s OSA is due to idiopathic pleurisy. The clinician explained that the risk factors for OSA included craniofacial morphology or upper airway tissue abnormalities, advanced age, and obesity. In a statement received in May 2019 a former fellow serviceman indicated that when he shared a room with the Veteran from August 2000 to October 2000 the Veteran never snored or had sleep issues. In a January 2020 medical advisory opinion, the consulting clinician opined that it was less likely than not that the Veteran’s OSA was caused or aggravated by his chronic idiopathic pleurisy. The clinician noted that based on objective evidence the Veteran’s pleurisy has resolved. The clinician noted that OSA is due to recurrent obstruction of the pharyngeal airway, or upper airway collapse, and explained that there is no physiologic connection between pleurisy and OSA. In an October 2020 medical opinion, the provider noted that OSA can significantly worsen psychiatric disorders by creating a choking sensation, however the causative connection does not go in the other direction. The clinician noted that OSA is a physical pathophysiology caused by nasal and/or pharyngeal airway obstruction and is not caused or influenced by any psychiatric disorder. The clinician also noted that there was no evidence of aggravation of the Veteran’s OSA beyond its natural progression. December 2020 correspondence indicates the Veteran suffers from depression and anxiety. The clinician noted that chronic sleep impairment was exacerbated by chronic pain and marked by frequent awakenings. The clinician stated that it is at least as likely as not that the Veteran’s depressive disorder is related to his service-connected disabilities. The Veteran contends that his current OSA was incurred in service or is secondary to his service-connected disabilities (to include via an intermediate step of being due to obesity caused by service-connected disabilities). Service connection is warranted for disability that was caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310. The Veteran has established service connection for, as pertinent here, depression, various musculoskeletal conditions, dermatological, genitourinary, and chronic idiopathic pleurisy conditions. A February 2015 rating decision denied service connection for obesity as secondary to service-connected disabilities. The Veteran’s STRs are silent for complaints, findings, treatment, or diagnosis of a sleep disorder. He also testified that OSA was not diagnosed with in service. And a former fellow service has stated that when he served and shared a room with the Veteran, the Veteran was never observed to snore or have problems with sleep. Thus, the record does not show or suggest (and the Veteran does not allege) that his OSA is related directly to (was incurred during) his active duty service. The Veteran’s stated theory of entitlement in this matter is one of secondary service connection, i.e., that his OSA is secondary to his service-connected disabilities. Whether the Veteran’s service-connected disabilities caused or aggravated his OSA is a medical question that is beyond the scope of common knowledge and incapable of resolution by lay observation; it requires medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As noted above, in correspondence received in September 2014 the Veteran’s chiropractor stated in pertinent part that “spinal discomforts have made a negative effect on quality of sleep as well as trouble with sleep apnea.” However, quality of sleep is not (of itself) the critical factor in this claim; what must be determined is the etiology of OSA. To the extent that the opinion suggests pain due to a service-connected musculoskeletal disability may have been a factor in contributing to cause OSA, it is unaccompanied by rationale that cites to supporting factual data and medical principles and therefore lacks probative value (as was noted in a subsequent Board remand). See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Board also notes that various lay, buddy, and personal statements that have submitted in support of the claim. A number of them do not address the etiological question that is dispositive here. To the extent that any do so, as they are by lay persons, who do not profess to have medical expertise, they lack probative value. Regarding the theory that obesity secondary to service-connected disabilities was (as an intermediate step) an etiological factor for the Veteran’s development of OSA, because a final rating decision denied service connection for obesity as secondary to service-connected disabilities. Such theory lacks legal merit. 38 C.F.R. § 3.310. Regarding secondary service connection, the September 2016, November 2017, February 2019, January 2020, and October 2020 consulting providers each opined, in essence, that the Veteran’s OSA was not caused or aggravated by his service-connected disabilities. Cumulatively, the opinions explained that medical principles do not support that the anatomic pathology that underlies OSA may be impacted (caused or aggravated) by such disabilities as depression, an idiopathic pleurisy (that has resolved), or the service connected musculoskeletal disabilities. It was acknowledged that, as was argued and indicated in supporting evidence, OSA may aggravate depression (which is service-connected); however, while such may be significant if service connection for depression was for consideration, it is not the etiological relationship that must be established to substantiate a claim of service connection for OSA as secondary to depression. The Board finds the opinions against the claim to be probative evidence in this matter (and ultimately persuasive0 Because the December 2020 opinion in support of the claim is conclusory (without explanation of rationale or citation to supporting factual data and medical principles) it lacks substantial probative value in this matter. Considering the foregoing, that Board finds that the preponderance of the evidence is against the claim of service connection for OSA, and that the appeal in the matter must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Staskowski, 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.