Citation Nr: 21012189 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 14-38 997A DATE: March 3, 2021 ORDER Service connection for obstructive sleep apnea is denied. FINDING OF FACT The Veteran’s obstructive sleep apnea is not secondary to a service-connected disability and is not otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea due to service or a service-connected disability are not 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 had active service in the U.S. Air Force from June 1959 to June 1967 and in the U.S. Coast Guard from November 1972 to November 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision. It was previously remanded by the Board in September 2017, April 2019 and October 2020. Service connection for obstructive sleep apnea The Veteran contends that his sleep apnea is directly related to his periods of active service. “Direct” service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The Board concludes that, while the Veteran has a diagnosis of obstructive sleep apnea, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. The Veteran was not diagnosed with sleep apnea until September 2012, almost 28 years after his discharge from service. In addition, service treatment records are negative for any complaints, treatment or diagnoses related to sleep apnea. Notably, during service examinations in September 1983 and October 1984, the Veteran reported insomnia and difficulty sleeping, but only in the context of depression. As stated by a December 2019 VA examiner, science defines insomnia as difficulty with sleep initiation, duration or quality despite adequate opportunity and circumstance for sleep. Sleep apnea is interrupted airflow during sleep which causes one to awaken. The examiner noted that the findings from these service examinations were consistent with depression, not sleep apnea. There are no in-service findings specific to sleep apnea. While the Veteran believes his sleep apnea had its onset or is otherwise related to service, the Board reiterates that the preponderance of the evidence weighs against findings that a relevant in-service incurrence of sleep apnea or other pertinent event occurred. Therefore, service connection on a “direct” basis is not warranted. The Veteran also contends his sleep apnea is secondary to his service-connected hypertension and/or PTSD. Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The Board concludes that, while the Veteran has an established diagnosis of sleep apnea, the preponderance of the evidence is against finding that it is proximately due, the result of, or aggravated beyond its natural progression by any service-connected disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). In support of the claim, the Veteran’s representative cited medical literature in its August 2017 brief which stated that sleep apnea prevented restful sleep and is associated with high blood pressure. While the Board acknowledges this evidence, it suggests that sleep apnea has an adverse impact on blood pressure, not that high blood pressure can cause or aggravate sleep apnea. This is borne out by VA medical opinions from December 2017, December 2019, July 2020 and October 2020. Collectively, these opinions all stated that sleep apnea was not caused by, or proximately due to, hypertension or PTSD. They noted that obstructive sleep apnea was caused by blockage of the upper airways during sleep, usually by soft tissues in the back of the throat. Hypertension, as a vascular issue, may be associated with sleep apnea but is not a medically supported cause of it. A review of Up-to-Date, a higher regarded professional resource, showed no literature supporting a cause and effect relationship between hypertension and sleep apnea. Similarly, while there was literature showing that those with PTSD had an increased risk of sleep apnea, PTSD was not medically supported as a cause of sleep apnea. PTSD and sleep apnea had common symptoms of disrupted and non-restful sleep, but again, sleep apnea was caused by collapse of the airway during sleep, and there is no evidence that this airway restriction is due to PTSD. There are no competent medical opinions to refute these conclusions or otherwise assert hypertension or PTSD as causes of sleep apnea. Regarding aggravation of sleep apnea, VA will not concede that a nonservice-connected condition was aggravated by a service-connected disability unless the baseline level of severity of the nonservice-connected condition is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected condition. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR Part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b). In this case, the Veteran was diagnosed with obstructive sleep apnea in September 2012 and prescribed a CPAP device to wear. This establishes a baseline level of 50 percent under 38 C.F.R. § 4.97, Diagnostic Code 6847. A higher 100 percent rating is assigned when sleep apnea results in chronic respiratory failure with carbon dioxide retention or cor pulmonale, or if sleep apnea requires a tracheostomy. In order to establish service connection for sleep apnea based on aggravation by PTSD or hypertension, the evidence must first show that sleep apnea results in chronic respiratory failure with carbon dioxide retention, cor pulmonale, or treatment with a tracheostomy. However, a review of the available evidence does not show the above-listed manifestations. A December 2017 VA examination was negative for any such findings, and the Veteran’s VA treatment records show that he has been satisfactorily treated with his CPAP device. In August 2019, he was noted to be compliant with his CPAP and felt rested. There are no indications in his VA treatment records of any chronic respiratory failure, cor pulmonale or tracheostomy. Because the evidence does not show that the Veteran’s sleep apnea has worsened beyond its baseline level, service connection based on aggravation by a service-connected disability is not warranted. To the extent the Veteran believes his sleep apnea is proximately due to, or aggravated by, a service-connected disability, he has not been shown to have the necessary medical knowledge or training to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and the interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shamil Patel, 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the “Order.” If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board’s decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: • Appeal to the United States Court of Appeals for Veterans Claims (Court) • File with the Board a motion for reconsideration of this decision • File with the Board a motion to vacate this decision • File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: • Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. § 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. § 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. § 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court’s website at: http://www.uscourts.cavc.gov. The Court’s website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court’s website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. § 5904; 38 C.F.R. § 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board’s decision. See 38 C.F.R. § 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. § 5904; 38 C.F.R. § 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. § 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. § 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. § 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED