Citation Nr: 21011697 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 15-10 313 DATE: March 2, 2021 ORDER Entitlement to service connection for a sleep disorder, to include on a secondary basis, is denied. FINDING OF FACT The Veteran’s sleep disorder was not incurred in or caused by active service, nor was it caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for a sleep disorder, to include on a secondary basis, are not met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 2003 to October 2007. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In December 2018, the Board remanded this issue for further development. Specifically, the Board instructed that any outstanding VA and pertinent private treatment records should be obtained and associated with the claims file. Additionally, the Veteran should be afforded a VA examination to determine whether any current sleep disorder is related to service, to include as due to or aggravated by her service-connected psychiatric disability. Additional VA treatment records were added to the Veteran’s claims file, and a letter was sent to the Veteran in September 2019 and January 2020, requesting that the Veteran submit, or authorize VA to obtain, any additional relevant private treatment records in support her claim on appeal. No response was received from the Veteran. The requested VA examination and opinions were obtained in September 2019. The RO subsequently issued a Supplemental Statement of the Case (SSOC) and the case was returned to the Board for adjudication. Thus, the Board finds that the requested development, in substantial compliance with the Board’s December 2018 remand directives, has been completed. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Establishing service connection generally requires (1) evidence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established on a secondary basis. In this instance, the evidence must demonstrate an etiological relationship between a service-connected disability or disabilities on the one hand and the condition said to be proximately due to the service-connected disability or disabilities on the other. 38 C.F.R. § 3.310 (a); Wallin v. West, 11 Vet. App. 509 (1998). Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Continuity of symptomatology may also provide a basis for a grant of service connection for diseases defined as “chronic” by VA. 38 C.F.R. § 3.303(b), 3.307(a)(3), 3.309(a); Fountain v. McDonald, 27 Vet. App. 258 (2015). After careful consideration of the evidence, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, any reasonable doubt is resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to service connection for a sleep disorder, to include on a secondary basis, is denied. The Veteran contends that her current sleep disorder had its onset during active service, manifested by difficulty sleeping. Alternatively, she contends that her sleep disorder is due to or aggravated by her service-connected PTSD. Service treatment records reflect complaints of sleeping trouble associated with her in-service mental health visits, as well as on her Report of Medical History at service separation in September 2007, which she attributed to back and knee pain. Post-service documentation associated with the record reflects ongoing complaints of difficulty sleeping due to nightmares, racing thoughts, tinnitus, joint pain, and nocturia until she underwent a sleep study in December 2015, which resulted in a diagnosis of severe obstructive sleep apnea/hypopnea. She began treatment with CPAP in January 2016. A September 2019 VA examination notes a diagnosis of obstructive sleep apnea, diagnosed in 2015. The Veteran reported that she was constantly waking up and was unable to have a full night’s sleep while in the service. She indicated that she was always tired and felt she was not well rested. She was referred to have a sleep study due to her complaints. She reported that she was awakened on many occasions by her fiancée for heavy snoring with lapse in taking a breath. She indicated that she now uses a machine, but the snoring is still a problem. The examination report also notes that the Veteran continues to take Trazodone at bedtime as needed. The examiner opined that the Veteran’s sleep apnea was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that there is a significant relationship with PTSD and sleep apnea. Studies done have supported this theory and Veteran is currently receiving treatment for PTSD and continues to have nightmares and a sleeping disorder. Experts already knew that PTSD can (unsurprisingly) affect shut eye. It is not uncommon for people to have nightmares and trouble falling asleep once they are home from service, and now new research, which looked at Iraq and Afghanistan veterans who were being evaluated for PTSD, found that 69.2 percent of those vets are at high risk for sleep apnea. In one study the authors say that disrupted sleep and sleep deprivation while in combat, paired with Veteran’s physical and psychological stress may play a role. The research also showed that the risk for sleep apnea climbs for those with more severe PTSD. The same examiner also opined that sleep apnea was at least as likely as not proximately due to or the result of the Veteran’s service-connected condition. The examiner reasoned that sleep apnea is a physical oral-tissue collapse and not related to PTSD. The conditions of sleep apnea and PTSD may co-exist however sleep apnea is an obstructive process of the oral-pharyngeal airway, a separate and unrelated entity to the PTSD/mental health condition that does not cause the physical airway obstruction. There is no established causal relationship between PTDS and sleep apnea. The examiner further opined that it was at least as likely as not that the Veteran’s sleep apnea was aggravated beyond its natural progression by a service-connected disability, reasoning that PTSD can affect shut eye. It not uncommon for people to have nightmares and trouble falling asleep once they return home from service. Disrupted sleep and deprivation of sleep paired with the Veteran’s physical and psychological stress can play a role. Citing medical literature, the examiner indicated that studies have shown that the risk is even higher with more severe PTSD. In June 2020, addendum opinions were obtained from a different VA examiner, clarifying the opinions from the previous examiner. The examiner reviewed the opinions provided by the previous VA examiner, and opined that it was less likely than not that the Veteran’s sleep apnea was related to service, reasoning that there is no objective evidence of obstructive sleep apnea during service. The Veteran’s statement that nerve pain and back pain that caused her to lose sleep, noted on the Report of Medical History at separation in September 2007, has no etiological or pathophysiological relationship to obstructive sleep apnea. While musculoskeletal pain and nerve pain can interfere with sleep, there is no causative relationship to sleep apnea. The gold standard for diagnosing sleep apnea remains a sleep study which directly measures hypopnea/apneic episodes during sleep. The Veteran did not have a sleep study until 2015, eight years after service. There is no established medical nexus for sleep apnea related to service. Additionally, the examiner opined that sleep apnea was less likely than not proximately due to or the result of the Veteran’s service-connected disability. The examiner indicated that sleep apnea and PTSD are considered to be two distinct and separate medical conditions. Research has established an association between the two conditions due to common symptoms of disrupted sleep patterns and non-restful sleep, which have been shown to affect outcome measures of health and wellbeing in Veterans. There is also research which shows that younger veterans with PTSD are at increased risk for sleep apnea and should be routinely screened with sleep studies. However, to date, there is no established etiological basis for Obstructive Sleep Apnea (OSA) due to PTSD. The pathophysiology of OSA is characterized by narrowing or collapse of the pharyngeal airway during sleep. It is caused by anatomical variations in the craniofacial features and/or neck and is often due to excess weight and the aging process. PTSD can interfere with sleep due to emotional and psychological issues, nightmares and hypervigilance with easy arousal during sleep, but OSA has not been found to be proximately due to PTSD. Finally, the examiner opined that the Veteran’s OSA was not at least as likely as not aggravated beyond its natural progression by a service-connected disability. The examiner indicated that the objective measure of the severity and/or aggravation of obstructive sleep is the Apnea/Hypopnea Index (AHI). The Veteran was noted to have severe OSA with an AHI measured of 22.1/hr on the sleep study in December 2015. The CPAP data download and compliance checks in 2016 noted an AHI =0.3/hr and AHI=0.4/hr with use of the CPAP. The OSA is clearly improved with effective treatment using the CPAP. The Veteran has noted that she has compliance issues with use of the CPAP, which is a common issue among CPAP users and is independent of the PTSD. Mental Health examination notes document effective management of the PTSD sleep issues with use of Trazadone, which she takes infrequently. Thus, the examiner found that there is no evidence that the sleep apnea has been aggravated due to service-connected PTSD. After a review of the evidence of record, the Board finds the weight of the evidence is against the claim for service-connection for a sleep disorder on either a direct or secondary basis. Regarding the theory of direct service connection, the Board finds the June 2020 VA examiner’s opinion to be the most probative evidence of record. The examiner opined that the Veteran’s sleep disorder was not etiologically related to her active service. The examiner’s opinion was based on a thorough review of the Veteran’s claims file, including her medical treatment records, and considered her reports of difficulty sleeping during service due to pain; further, the opinion provided supporting rationale for the findings, which was supported by the evidence of record. Although the September 2019 VA examiner also provided a negative direct service connection opinion, the examiner offered a rationale that addressed secondary service connection. Nevertheless, other than the Veteran’s own statements, there is no evidence of record indicating that her sleep disorder was related to her active service. To the extent that the Veteran herself has suggested that her problems sleeping during service are etiologically related to her currently diagnosed sleep disorder, the Board finds that the opinion of the June 2020 VA examiner outweighs that of the Veteran. Although the Board acknowledges that the Veteran is competent to report difficulty sleeping, there is no indication that the Veteran is competent to etiologically link these reported in-service symptoms to her obstructive sleep apnea, diagnosed after discharge. The Veteran’s current assertions regarding her symptoms are not sufficient to outweigh the remaining evidence of record. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Accordingly, the preponderance of the evidence is against the Veteran’s claim for service connection for sleep apnea on a direct basis, as there is no competent evidence showing a causal connection between sleep apnea and active service. Turning to the theory of secondary service-connection, the Board finds the June 2020 VA examiner’s opinions to be the most probative evidence of record. The examiner considered medical literature suggesting a relationship between PTSD and sleep apnea but nevertheless found that the Veteran’s obstructive sleep apnea is not proximately due to her PTSD. The Board recognizes that the September 2019 VA examiner indicated that sleep apnea was at least as likely as not proximately due to or the result of the Veteran’s service-connected condition. However, the examiner’s rationale that sleep apnea is a physical oral-tissue collapse and not related to PTSD, contradicts the stated opinion. Therefore, the Board affords the September 2019 opinion no probative value and finds that the September 2019 VA examiner’s opinion is outweighed by that of the June 2020 VA examiner. Finally, the June 2020 VA examiner found that there is no evidence that the sleep apnea has been aggravated due to her service-connected PTSD, providing a thorough rationale based on the Veteran’s documented AHI, indicating that this is the objective measure of the severity and/or aggravation of obstructive sleep. The Board has weighed this opinion with that of the September 2019 VA examiner, indicating that it was at least as likely as not that the Veteran’s sleep apnea was aggravated beyond its natural progression by PTSD because PTSD can affect shut eye, and disrupted sleep and deprivation of sleep paired with the Veteran’s physical and psychological stress can play a role. However, the Board finds that the September 2019 VA opinion is not sufficient to place the matter in equipoise. Specifically, to the extent that the examiner’s reference to “shut eye” suggests that PTSD merely affects sleep, this does not provide sufficient support for a relationship between PTSD and a diagnosed sleep disorder. Furthermore, to the extent that the examiner was suggesting that “shut eye” was a separate diagnosis, the Board notes that neither the September 2019 VA examiner, nor any other clinician, has provided such a diagnosis at any time during the period on appeal. Thus, after reviewing the medical opinions of record addressing aggravation, the Board affords the June 2020 VA examiner’s opinion more probative value and finds that the June 2020 VA opinion outweighs the September 2019 VA examiner’s opinion. The Board acknowledges that the Veteran, through her representative, contends that the June 2020 VA examiner’s opinions are not adequate. The Board notes that VA satisfies its duty to assist when it provides a medical examination performed by a person who is qualified through education, training, or experience to offer medical diagnosis, statements, or opinions. See Cox v. Nicholson, 20 Vet. App. 563, 569 (2007). Further, the Board may assume a VA medical examiner is competent as part of the presumption of regularity that attaches to the actions of public officials. Id.; Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009). There is nothing in the opinion to suggest that the examiner was not qualified through lack of education, training, or experience to render an opinion regarding the Veteran’s service connection issue on appeal. See Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011). As noted above, an examiner need only be “qualified through education, training, or experience to offer medical diagnoses, statements, or opinions,” and a specific specialist is not necessarily required. See Cox, 20 Vet. App. at 569. Accordingly, the Board finds the June 2020 VA examiner qualified and competent to provide the requested examination report. Nevertheless, the Veteran’s representative has indicated disagreement with the examiner’s assessment that the opinion was based solely on Obstructive Sleep Apnea and did not consider central sleep apnea, sleep apnea, or sleep disturbance. As support for this contention, the Veteran’s representative indicates that the doctors that conducted the sleep test stated that her symptoms were “consistent with Obstructive Sleep Apnea”, without providing a formal diagnosis, and cites to a February 2016 rheumatology record indicating that the Veteran had recently been diagnosed with sleep apnea, which the representative asserts is “the only statement made regarding diagnosis”. To the extent that the June 2020 VA examiner did not provide an opinion on “sleep apnea” or symptoms of sleep disturbance, the Board finds that the examiner’s opinions adequately encompasses the Veteran’s current diagnosed sleep disorder. Specifically, the first mention of “sleep apnea” in the Veteran’s medical treatment records is documented in April 2015 in the context of the Veteran’s own suggestion that she may suffer from sleep apnea. Subsequently, in November 2015, she was referred for a sleep consultation, and it was recommended at this time that she undergo a sleep study to rule out central or obstructive sleep apnea. Following her December 2015 sleep study, the Veteran received a diagnosis of obstructive sleep apnea. Here, the Board acknowledges that the Veteran’s representative has indicated that the doctors that conducted the sleep test stated that her symptoms were consistent with OSA, without providing a formal diagnosis. However, a medical record dated the day after the sleep study indeed reflects that the Veteran was notified about her diagnosis of obstructive sleep apnea and was prescribed APAP therapy as treatment. Medical treatment records thereafter reference her sleep disorder interchangeably as sleep apnea and obstructive sleep apnea/OSA. However, these subsequent records referencing “sleep apnea” did not suggest that this was a separate diagnosis, nor did she ever undergo further evaluations or sleep studies to suggest otherwise. Furthermore, there is no indication in the record that the Veteran ever received a diagnosis of central sleep apnea. Therefore, to the extent that the June 2020 VA examiner limited the opinions to obstructive sleep apnea/OSA, the Board does not find that this renders the opinions inadequate or otherwise insufficient for purposes of deciding the Veteran’s claim on appeal. Further, the Veteran’s representative asserts that the June 2020 VA examiner’s opinion has little probative value because the conclusion was “not medically sound”, the cited material had no direct quote or reference in the rationale, and, according to the representative, the referenced material contains no verbiage that would lead one to the examiner’s conclusion. First, to the extent that the Veteran’s representative has suggested that the June 2020 VA examiner’s opinion that PTSD and OSA are unrelated is “not medically sound” because there are studies that show “multiple conditions and symptomology that manifests in sleep apnea”, including increased blood pressure and heart rate, the Board does not find that this referenced medical article supports a relationship between OSA and PTSD or in any way contradicts the opinion of the June 2020 VA examiner. Next, the Board notes that the fact that the rationale provided by an examiner “did not explicitly lay out the examiner’s journey from the facts to a conclusion,” does not render the examination inadequate. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). Lastly, the Board does not find that the opinions are inadequate merely because the examiner did not interpret or apply the medical evidence in a manner favorable to the Veteran. Therefore, the Board finds that, not only are the June 2020 VA examiner’s opinions adequate for purposes of deciding the Veteran’s claim, but, for all of the reasons noted above, the Board finds that the June 2020 VA opinions are the most probative evidence of record for determining whether the Veteran’s obstructive sleep apnea was etiologically related to active service or caused or aggravated by a service connected disability. Additionally, to the extent that the Veteran contends that a relationship has been established between her obstructive sleep apnea and a service-connected disability based on the fact that sleep impairment is a symptom or consequence of her service connected right knee, back, tinnitus, or PTSD, the Board does not find that this is evidence of a nexus. While the disorders may have similar symptoms or consequences, there is no presumptive nexus between a sleep disorder and her knee, back, tinnitus, or PTSD. Furthermore, to the extent that the rating criteria for psychiatric disorders contemplates sleep impairment, this is not otherwise considered probative medical evidence for purposes of establishing a nexus. Finally, the Board acknowledges that obesity may be an “intermediate step” between a service-connected disability and a current disability that may be service connected on a secondary basis. VAOPGCPREC 1-2017 (January 6, 2017). Notably, a February 2014 VA treatment record reflects that the Veteran experienced a relatively short-term weight gain after she quit smoking, and it was noted from this time forward that the Veteran was obese. However, although medical records indicate that the Veteran was obese, there is no indication in the record that the Veteran’s obesity is related to her PTSD, nor has the Veteran made such an assertion. The Board has considered the Veteran’s contention that her sleep disorder had its onset in service or was caused or aggravated by a service-connected disability. While the Board acknowledges that the Veteran is competent to report her symptoms, the Board notes that the matter of the etiology of obstructive sleep apnea is one within the province of trained professionals. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the etiology of obstructive sleep apnea is a complex medical matter that falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007). As the Veteran is not shown to be other than a layperson without the appropriate training and expertise, she is not competent to render a probative opinion regarding the medical matter upon which this claim turns. Id. Thus, the probative value of the June 2020 examiner’s opinion outweighs that of the Veteran, as the examiner has more education, experience and training in determining the etiology of obstructive sleep apnea. Based on the foregoing, the Board finds that the preponderance of the evidence is against a grant of service connection on a direct or secondary basis for a sleep disorder. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable, and service connection must be denied. 38 U.S.C. § 5107(b). Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Hite, 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.