Citation Nr: 21011610 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 14-32 639 DATE: March 2, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA), including as secondary to service connected disabilities, is denied. FINDING OF FACT The Veteran’s OSA, diagnosed many years after service, is not the result of an in-service event, injury or disease, and is not caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for OSA have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from April 1981 to April 2005. In December 2015, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge of the Department of Veterans Affairs (VA), Board of Veterans’ Appeals (Board). A transcript of that hearing is of record. The Veteran waived RO consideration of any additional evidence added to her file. In June 2018 and August 2020, in pertinent part, the Board remanded this claim to the Regional Office/Agency of Original Jurisdiction (RO/AOJ) for additional development. The appeal has been returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its August 2020 remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial and not strict compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)); see also Dyment v. West, 13 Vet. App. 141, 14647 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board’s remand). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Where a disease is diagnosed after discharge, service connection may be granted when all of the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303(a). Secondary service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). To substantiate a claim of secondary service connection there must be evidence of (i) a current chronic disability for which service connection is sought; (ii) an already service-connected disability; and (iii) that the already service-connected disability (a) caused or (b) aggravated the disability for which service connection is sought. See Allen v. Brown, 7 Vet. App. 439 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Review of the record shows both direct and secondary service connection theories of entitlement have been raised as to the claim of service connection for OSA. Specifically, November 2015 statements from the Veteran and her mother recall that the Veteran experienced sleep issues and snored during her period of active duty service. In addition, during her December 2015 Board hearing, the Veteran testified that, although she was not diagnosed with OSA while on active duty, she suffered symptoms referable to sleep apnea. Alternatively, an August 2019 private treatment report notes the Veteran has “reduced sleep efficiency likely related to underlying factors including pain and poor sleep hygiene;” thereby, suggesting her OSA may be secondary to her service-connected cervical and thoracolumbar spine and/or bilateral knee disabilities. The Veteran’s service treatment records (STRs) are silent for treatment or diagnoses of respiratory or sleep complaints, including sleep apnea. A July 1981 report of Emergency Care and Treatment notes the Veteran was sent to the ER by the school instructor for complaints of falling asleep in class. It is noted the Veteran had gone to bed at 1am and awoke at 4am for school, she felt well other than fatigue, and the assessment was fatigue. These records also include a July 2003 Preanesthetic Assessment for Sedation/Anesthesia (in connection with dental treatment) which notes no snoring or sleep apnea, reports of medical history dated in August 1980 and June 1985 which show the Veteran reported having no history of frequent trouble sleeping and a July 2001 treatment report which notes she reported she “sleeps normally.” A March 2005 VA treatment record (prior to the Veteran’s April 2005 separation from service), notes the Veteran “sleeps a lot during the day.” In September 2005, the she reported she had “been told she has pauses of breathing in her sleep would like to have sleep apnea evaluation.” A January 2006 Polysomnography Report showed no evidence of sleep disordered breathing or periodic limb movement disorder and noted prolonged sleep latency and reduced sleep efficiency possibly related to the unusual laboratory milieu; the recommendation was weight loss. These records include a February 2006 addendum which notes the Veteran was notified that sleep study showed no sleep apnea. VA treatment records show the Veteran underwent another sleep study in December 2009, when the diagnoses included normal sleep related breathing and primary snoring. The initial post-service diagnosis of OSA is provided in a January 2015 report of private Polysomnography Interpretation which shows a diagnosis of severe OSA. This treatment report also notes the Veteran had undergone a home sleep apnea test in December 2014 and was diagnosed with severe OSA. In addition, a December 2015 statement from the Veteran’s private physician notes that the Veteran has a diagnosis of OSA. The physician notes that the Veteran “has the body habitus of someone with Obstructive Sleep Apnea” but provides no opinion as to the etiology or initial onset of the Veteran’s OSA. An August 2019 VA Sleep Apnea examination report includes the opinion that sleep apnea is not related to service because August 2019 polysomnogram “did not reveal disordered breathing and AHI <0.9 and does not meet diagnostic criteria for OSA. Based on this result, a diagnosis of OSA is not rendered.” However, since the Veteran was diagnosed with OSA in December 2014, during the appeal period, this opinion is insufficient for rating purposes. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (service connection may be warranted if there was a disability present at any point during the claim period, even if it is not currently present). Accordingly, pursuant to the August 2020 Board remand, a supplemental opinion, which also addresses secondary service connection (as raised by the August 2019 private treatment report noting the Veteran has “reduced sleep efficiency likely related to underlying factors including pain and poor sleep hygiene”), was obtained in October 2020. After a detailed review of the record and the relevant medical literature, the examiner opined: (1) It is less likely than not that sleep apnea is related to the Veteran’s active duty service or any incident therein because, although the Veteran’s mother observed loud snoring and odd sleep patterns while living with the Veteran while she was on active duty, there is no evidence she had OSA at that time. The examiner explained that the Veteran underwent sleep studies in January 2006 (9 months after retirement) and December 2009 (4 years after retirement) and there was “NO EVIDENCE OF SLEEP DISORDERED BREATHING.” [Emphasis in original] She was diagnosed with severe OSA in December 2014 (9 years after retirement), based on results of a home sleep study. The examiner further explained that “[o]besity is a significant risk factor for development of Obstructive Sleep Apnea” and noted that the Veteran weighed 145 pounds with a BMI [body mass index] of 25 kg/m2 in June 2004, one year prior to retirement, and her weight had increased to 195 pounds with a BMI of 32.5 by January 2015, when she was first diagnosed with OSA. In this regard, the examiner noted the December 2015 letter from the Veteran’s physician stating “she also has the body habitus of someone with obstructive sleep apnea.” (2) The Veteran did not have OSA while in service; rather, she likely had a diagnosis of Primary Snoring (as reported by her mother.) The examiner noted the normal sleep studies in January 2006 and December 2009 and explained that, as she continued to gain weight after retiring, the Veteran eventually developed OSA documented by the December 2014 home sleep study 9 years later (OSA was not due to service but due to weight gain.) (3) It is less likely than not that the Veteran’s OSA was caused by her service-connected musculoskeletal disabilities because a “joint disorder/disability is not the cause of Obstructive Sleep Apnea and does not contribute to or increase the number of times per hour that one stops breathing, otherwise known as the Apnea/Hypopnea Index (AHI), which is an objective way to diagnose and measure the severity of Obstructive Sleep Apnea.” Citing to an online medical resource, the examiner explained “the most common cause of obstructive sleep apnea in adults is excess weight and obesity, which is associated with soft tissues of the mouth and throat. During sleep when throat and tongue muscles are more relaxed, this soft tissue can cause the airway to become blocked.” Upon review of the August 2019 private treatment report noting the Veteran has reduced sleep efficiency likely related to underlying factors including pain and poor sleep hygiene, the examiner explained that this statement “is not stating that her obstructive sleep apnea is affected by pain and poor sleep hygiene. It is commenting on sleep efficiency which refers to the ability to fall and stay asleep (i.e. insomnia) and obviously if someone is in pain, it makes it harder to get ot sleep or stay asleep.” (4) For the same reasons that the Veteran’s service-connected disabilities do not cause her OSA, the examiner opined that her service-connected disabilities do not contribute to or aggravate her OSA. Specifically, her service-connected musculoskeletal disabilities do not contribute to or increase the number of times per hour she stops breathing and the most common cause of OSA in adults is excess weight and obesity. It is not in dispute that the Veteran has OSA, as it has been diagnosed based on a sleep study. However, as it was not manifested as such in service or clinically diagnosed until December 2014 (over 9 years after service separation), direct service connection for such disability (on the basis that it became manifest in service and has persisted since) is not warranted. It is also not in dispute that the Veteran is service-connected for cervical and thoracolumbar spine and bilateral knee disabilities. The credibility and weight to be attached to medical opinions is within the providence of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Greater weight may be placed on one physician’s opinion over another depending on factors such as reasoning employed by the physicians and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Considering the opinions in turn, the Board notes that the August 2019 private treatment report noting the Veteran has “reduced sleep efficiency likely related to underlying factors including pain and poor sleep hygiene” suggests her sleep impairment is related (caused or aggravated by), at least in part, to pain due to her service-connected cervical and thoracolumbar spine and bilateral knee disorders; however, the statement refers generally to “reduced sleep efficiency,” does not specify a relationship to OSA or include an explanation of rationale. Therefore, it lacks probative value. In contrast, the October 2020 VA medical opinion states that OSA was initially diagnosed in the December 2014, over 9 years after the Veteran’s separation from service, and is not caused or aggravated by her service-connected musculoskeletal disabilities. This opinion attributes the Veteran’s OSA to her post-service weight gain. The October 2020 opinion warrants substantial probative weight because it is based on a detailed review of the record, including the August 2019 private treatment record suggesting a secondary service connection theory of entitlement, and is consistent with the Veteran’s medical history. The opinion is accompanied by a sufficient explanation of why the complaints and findings shown do not support a nexus between the Veteran’s OSA and her service or service-connected disabilities. Because the opinion cites to factual data and is provided by a medical professional competent to offer the opinion, it is probative evidence in this matter. Moreover, the October 2020 opinion is supported by the December 2015 statement from the Veteran’s private physician that she “has the body habitus of someone with Obstructive Sleep Apnea.” The October 2020 VA medical opinion is probative evidence in the matter and, in the absence of equally or more probative evidence suggesting that a disease, injury, or event in service or a service-connected disability may have been an etiological factor for the Veteran’s development of OSA, it is persuasive. Although laypersons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issues in this case – whether the Veteran’s OSA can be related to service and/or her service-connected musculoskeletal disabilities - falls outside the realm of common knowledge of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The diagnosis of an insidious disability such as OSA is a medical question that requires medical expertise. While the Veteran may be able to establish by her own observations and the observations by her mother that she had symptoms that might be associated with OSA, because she and her mother are laypersons, they are not competent to establish that OSA was present at time she experienced her observed symptoms. Thus, any assertions by the Veteran and her mother as to diagnoses and causation have no probative value. The preponderance of the evidence is against the claim of service connection for OSA; therefore, the benefit of the doubt rule does not apply and the appeal as to this matter must be denied. Gilbert v. Derwinski, 1 Vet. App. at 54-56. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kshama Hughes 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.