Citation Nr: 21012003 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 16-00 470 DATE: March 3, 2021 ORDER Entitlement to service connection for sleep apnea, to include as secondary to a service-connected disability is denied. FINDING OF FACT The Veteran’s sleep apnea is not the result of a disease or injury incurred in active duty service, nor is it secondary to a service-connected disability, including his posttraumatic stress disorder (PTSD). CONCLUSION OF LAW The criteria for service connection for sleep apnea, to include as secondary to a service-connected disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from August 1985 to April 1990 and from September 1990 to March 2006. This appeal arises from an August 2014 rating decision, denying service connection for sleep apnea. In September 2018, the Board remanded the issues of service connection for a low back disability and sleep apnea to the AOJ for additional development and consideration. On remand, in a May 2020 rating decision, the RO granted service connection for a low back disability. As this determination constitutes a full grant of the benefits sought as to that claim, it is no longer in appellate status. See Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 1997). The file is again before the Board for further appellate review. 1. Entitlement to service connection for sleep apnea, to include as secondary to a service-connected disability The Veteran contends that his sleep apnea began in service, and also that it is related to his service-connected PTSD. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Based on a review of the evidence, service connection is not warranted on a direct basis. The Board accepts that the Veteran has a currently diagnosed disability of obstructive sleep apnea, which was initially diagnosed on a January 2013 sleep study by private treating physician, Dr. M.L., who diagnosed the Veteran with obstructive sleep apnea and started him on a CPAP machine. Recently, the June 2019 VA examiner also diagnosed obstructive sleep apnea. During service, his service treatment records are absent of any diagnosis of sleep apnea. There is some indication of in-service incurrence of sleep problems, however. The Board acknowledges that for his November 2005 service separation examination, he reported excessive snoring, he had insomnia for years, slept approximately 4 hours per night, and always woke up tired in the mornings. Accordingly, the service clinician noted his ongoing insomnia and referred him to a service sleep clinic for further evaluation. Nonetheless, a January 2006 in-service sleep study noted there is snoring, but specifically found no significant obstructive sleep apnea. There is also no medical opinion evidence that relates his current sleep apnea disability to service. The Veteran and his wife assert he has had sleep apnea symptoms since during service, including snoring, insomnia, and profuse sweating during sleeping. See June 2013 Veteran’s claim and June 2013 Veteran’s wife’s statement; see December 2015 Veteran’s substantive appeal (VA Form 9). The Board finds the lay statements are competent to offer such assertions, and to the extent they are uncontradicted, they are also credible evidence of in-service snoring, sweating, and insomnia symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159 (a)(2). However, there is a highly probative medical opinion evidence against the notion of direct service connection provided by the August 2020 VA examiner. The examiner considered the Veteran’s and his wife’s report of snoring heavily and insomnia during service, but nonetheless, the examiner opined that the Veteran’s sleep apnea is less likely as not incurred in or caused by military service. In this regard, the examiner reasoned, “A clinic note from November 30, 2005 reported “pt snores and is always tired in the mornings” and “pt has had insomnia for years.” This prompted a sleep study to be done in the service, on January 10, 2006, which was just 2 months prior to separation, which revealed an overall AHI 3.9/hr. An AHI 3.9/hr is normal and is not diagnostic of [obstructive sleep apnea (OSA)]. Thus, OSA was not present during his active duty service. His reported symptoms (which includes his snoring, insomnia) during the service were therefore not due to OSA. Please note that snoring (and insomnia) is not diagnostic of OSA and can be present in individuals without OSA, as confirmed on his sleep study during service.” The examiner also considered Internet literature submitted by the Veteran in support of the notion that sleep apnea developed during his active duty service. The examiner reasoned, in relevant part, “The veteran had submitted a “blog” from the internet titled “Veterans with sleep apnea: a growing human issue”; please note that a “blog” is not a peer-reviewed article and is therefore not an accepted source of evidence in the peer-reviewed medical literature. Regardless, the “blog” highlights that OSA is common among veterans though provides no objective evidence demonstrating causation of OSA by “military service.” OSA develops with advancing age. The veteran was relatively older at the time of detection of OSA in 2013. He had a sleep study done around the time of separation from service which effectively demonstrated that OSA was not present; therefore, OSA was not present in service. Rather, he developed OSA post-service sometime during the interim 7 years that transpired after separation from service before another sleep study was done; during the 7 years that transpired after service, the veteran aged an additional 7 years and developed OSA during that timeframe.” Given the VA examiner’s thorough review of the claims file, and discussion of the rationale of the opinion, the Board finds the VA examiner’s opinion is highly probative evidence against the possibility of direct service connection. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (“It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion.”). The Board acknowledges a June 2019 VA examiner provided a negative nexus opinion, but it provided a cursory opinion and rationale, such that it is of limited probative value. The Board acknowledges the Veteran’s lay statements that this disability is related to service, but he is not competent to provide a nexus opinion in this case. This issue is medically complex, as it involves internal disease processes and requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Next, the Board finds there is no basis for service connection on a secondary basis. Service connection may be established on a secondary basis for disability that is proximately due to or the result of a service-connected condition. See 38 C.F.R. § 3.310 (a). Secondary entitlement is also available when a service-connected condition has aggravated the disability in question, but compensation is limited to the degree of disability (and only that degree) over and above the degree of disability existing prior to the aggravation. See 38 C.F.R. § 3.310 (b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). There is no medical opinion evidence of record that suggests that sleep apnea was either causally related to or aggravated by any service-connected disability, especially his service-connected PTSD disability. However, he submitted medical literature in January 2017 that purportedly links his service-connected PTSD to his sleep apnea, although it is generic in nature, and thus limited in probative value in support of his claim. Rather, the August 2020 VA examiner found that the Veteran’s sleep apnea is less likely than not (less than 50% probability) proximately due to or the result of, or aggravated by, his service-connected PTSD. In this regard, the August 2020 VA examiner reasoned that “Obstructive sleep apnea is caused by recurrent functional collapse of the upper airway during sleep, due to anatomical abnormalities and tissue changes of this upper airway, leading to a complete or partial obstruction in airflow. Mental health disorders, including PTSD, do not cause or contribute to the physical and anatomical changes of this upper airway to lead to OSA. The veteran’s other service connected conditions (foot joint conditions, migraines, eye/lacrimal gland disorder, lumbar spine arthritis) do not influence the pathology of OSA to develop either.” Notably, the VA examiner considered the Veteran’s submitted medical literature, stating, “The veteran submitted an article titled “PTSD study may link sleep disorders to veteran” which reported that veterans with PTSD frequently have symptoms of insomnia. Insomnia however is generally not a symptom of OSA. The article stated that many studies “suggest that there may be a significant correlation between veterans with PTSD and sleep disorders, such as sleep apnea and insomnia.” The many studies and articles published to date show that OSA is frequently found among veterans with PTSD, however OSA is frequently found in the general population as well and is not a condition that is specific for a veteran with PTSD. In other words, PTSD and OSA do frequently coexist, but a causative role in PTSD causing OSA has not been demonstrated.” The examiner also cited and discussed peer-reviewed medical literature in concluding that “…causation of OSA by PTSD has not been established or clearly demonstrated to date. Based on review of objective to date in the peer-reviewed medical literature and per our current medical understanding of the pathogenesis of OSA, it is of my opinion that the veteran’s OSA is less likely than not (less than 50% probability) proximately due to or the result of his PTSD or any of his other service connected conditions.” The examiner also specifically discounted the possibility of aggravation of OSA by his service-connected PTSD or any other service-connected disability. Given the VA examiner’s review of the claims file, and discussion of the rationale of the opinion, including consideration of the Veteran’s and his wife’s lay statements and his submitted medical literature , the Board finds the VA examiner’s opinion is highly probative evidence against the claim. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (“It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion.”). The Board acknowledges the Veteran’s assertion that his sleep apnea was caused by or related to his service-connected disabilities, particularly his PTSD. In Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), the United States Court of Appeals for Veterans Claims (Court) held that, “[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer.” However, since the issue of obstructive sleep apnea is medically complex, as it involves internal disease processes and requires knowledge of interpretation of complicated diagnostic medical testing, he is not competent to provide a nexus opinion in this case as a layperson. Jandreau, 492 F.3d at 1377 n.4.   The Board concludes the evidence does not support the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Biswajit Chatterjee, 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.