Citation Nr: 21012968 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 14-32 882 DATE: March 8, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected other specified trauma and stressor related disorder, is granted. FINDING OF FACT The Veteran’s diagnosed OSA is aggravated by his service-connected other specified trauma and stressor related disorder. CONCLUSION OF LAW The criteria for entitlement to service connection for OSA, to include as secondary to service-connected other specified trauma and stressor related disorder, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1983 to August 1983 and from September 1990 to March 1991 with additional service in the Reserves. By way of background, the Board remanded this matter in July 2018 and April 2020 for additional development. As will be discussed in more detail below, the Board finds substantial compliance with the April 2020 remand directives has been met. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding when a remand is issued, the Veteran is entitled, as a matter of law, the right to compliance with the remanded order). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Entitlement to service connection for OSA, to include as secondary to service-connected other specified trauma and stressor related disorder, is granted. The Veteran contends his OSA began during service or, in the alternative, is secondary to his service-connected other specified trauma and stressor related disorder. The Board finds service connection is warranted. Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty, or for the aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for a Persian Gulf Veteran with objective indications of a qualifying chronic disability that manifested either during active service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2021. 38 U.S.C. § 1117(a)(1); 38 C.F.R. § 3.317(a)(1). A qualifying chronic disability is a chronic disability that may result from an undiagnosed illness or a medically unexplained chronic multisymptom illness (MUCMI). 38 C.F.R. § 3.317(a)(2)(i). The term chronic means that the disability has existed for 6 months or more, to include intermittent episodes of improvement or worsening over that period. 38 C.F.R. § 3.317(a)(4). A qualifying chronic disability is as a chronic disability that results from an undiagnosed illness or a MUCMI such as chronic fatigue syndrome, fibromyalgia, or a functional gastrointestinal disorder (excluding structural gastrointestinal diseases). 38 C.F.R. § 3.317 (a)(2)(i). MUCMI has been defined as a "diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities." 38 C.F.R. § 3.317 (a)(2)(ii). "Chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained." Id. Along with the three examples of a MUCMI provided by section 1117(a)(2)(B), Congress has provided a list of signs or symptoms that may be a manifestation of a MUCMI that includes: skin symptoms, headaches, muscle pain, joint pain, neurologic symptoms, neuropsychological symptoms, respiratory system symptoms, sleep disturbances, gastrointestinal symptoms, cardiovascular symptoms, abnormal weight loss, and menstrual disorders. 38 U.S.C. § 1117 (g); 38 C.F.R. § 3.317 (b). Here, the Veteran’s DD-214 reflects active service in the Southwest Asia theater of operations from October 1990 to March 1991. Therefore, he is considered a Persian Gulf Veteran. 38 C.F.R. § 3.317(e). When service connection cannot be established on a presumptive basis, the Court has held that the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (1994). In the event a Veteran has at least one service-connected disability, he or she may be entitled to benefits based on a secondary service connection. In order to establish a secondary service connection, the Veteran must show: (1) a current disability that is not already service-connected; (2) at least one service-connected disability; and, (3) evidence that the non-service-connected disability is either proximately due to or aggravated beyond its natural progression by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 444 (1995). In the alternative, entitlement to benefits may be found through direct service connection by establishing: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service,” also known as the nexus element. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Turning to the relevant evidence of record, upon entrance, the Veteran was clinically evaluated as normal. See January 1983 entrance examination. During a 1987 medical examination, the Veteran was clinically evaluated as normal declining experiencing frequent trouble sleeping. See May 1987 examination. Within the Veteran’s March 1991 separation examination, the Veteran declined experiencing frequent trouble sleeping and was clinically evaluated as normal. See March 1991 separation examination. In 1996, the Veteran complained of chronic fatigue. See January 1996 government treatment records. In 1997, the Veteran reported that he was “always tired” for the past six years stating that he has chronic tiredness. See November 1997 government treatment records. The provider noted that the Veteran was exposed to oil smoke in Kuwait. Id. A sleep study referral was considered. Id. The Veteran continued to report fatigue in January 1998 with a notation of suspected sleep apnea. See January 1998 government treatment records. In January 1998, he was referred to ENT for snoring, suspected sleep apnea, fatigue, and daytime sleepiness following which ENT referred the Veteran for a sleep study. Id.; see also February 1998 government treatment records. A sleep study was completed in March 1998 wherein the Veteran was diagnosed with OSA. See March 1998 government treatment records. Subsequent treatment records reflect continued treatment for OSA including an April 1998 notation that the Veteran reported his OSA symptoms began after his time in the Persian Gulf where he was a chemical decontaminant worker stationed in close proximity to oil fires. See April 1998 government treatment records. The Veteran was afforded multiple VA examinations to determine the nature and etiology of his OSA the first of which occurred in August 2019 noting a diagnosis of OSA. The Veteran completed a Gulf War General Medical Examination in August 2019 wherein the examiner noted sleep apnea in the Veteran’s medical history. The examiner opined from the conditions identified, including OSA, there was not a condition for which no etiology was established. See August 2019 VA examination. The VA examiner opined that the Veteran’s OSA was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. See August 2019 VA examination. The examiner reasoned that the Veteran separated from service in 1991 and was diagnosed in 2012/2013. Id. The examiner found that OSA was a diagnosable chronic MUCMI with a partially explained etiology. Id. She opined that the Veteran’s OSA was not related to a specific exposure event during service in Southwest Asia because with the exception of cancers, acute symptoms related to an exposure usually present at the time of the exposure and then wane rather than initially manifest years following exposure. Id. The August 2019 VA examiner further opined that the Veteran’s OSA was less likely than not proximately due to or the result of the Veteran’s service-connected condition because sleep apnea is not attributable to a known clinical diagnosis. Id. She reasoned that major risk factors for the development of OSA include age, male gender, obesity, craniofacial abnormalities, and upper airway soft tissue abnormalities. Id. Those with OSA also have crowding of oropharyngeal airway, the likely etiology of this Veteran’s OSA. Id. Another disability benefits questionnaire (DBQ) was completed in August 2020 wherein the Veteran reported onset of OSA in 1994 when he had his first sleep study. See August 2020 OSA DBQ. He was unable to tolerate CPAP and was sent for another sleep study. The examiner opined that the Veteran’s OSA was less likely than not incurred while on active duty in Southwest Asia from October 1990 through March 1991 because it is very unlikely that OSA would have occurred acutely during that 4.5 months. See August 2020 VA examination. The August 2020 VA examiner further opined that the Veteran’s OSA was less likely than not proximately due to or the result of the Veteran’s service-connected condition because OSA is caused by a physical obstruction of the upper airway. Id. Explaining psychiatric disorders do not cause a physical obstruction of the upper airway. Id. Regarding aggravation, the examiner stated that the Veteran’s psychiatric condition did not aggravate his OSA. Id. The examiner opined that he could not determine a baseline level of severity of OSA reasoning that there was insufficient evidence available and the Veteran stated that he has had the same symptoms since onset in 1994. Id. He reasoned that OSA is easily treated with the proper use of a CPAP. Id. The Veteran complained his hose gets on his nerves and can only sleep while sitting up and wearing it. Id. He was offered an oral applicator but cannot use one. Id. The examiner found that there was no indication that the Veteran is unable to properly treat his OSA due to the psychiatric condition. Id. In September 2020, another VA opinion was requested based upon a review of the Veteran’s claims file. The examiner opined that the Veteran’s OSA was less likely than not caused by his service-connected condition. See September 2020 VA examination. The examiner reasoned that the Veteran was at risk for OSA due to multiple risk factors including weight. Id. The September 2020 VA examination opined that the Veteran’s OSA is at least as likely as not aggravated beyond its natural progression by his service-connected condition. Id. The examiner reasoned that the Veteran’s other specified trauma and stressor related disorder produces nightmares 3-4 hours into his sleep resulting in trouble returning to sleep thereby aggravating his OSA. Id. An addendum opinion was obtained in September 2020 from the same September 2020 VA examiner directed to address articles submitted by the Veteran’s representative discussing OSA and PTSD. See September 2020 VA addendum. The examiner stated that the articles reviewed suggested a relationship or association between OSA and PTSD but that it was speculative and did not establish causation. Id. The examiner found that the articles were not supportive in providing evidence for an amended opinion than the previous opinion. Id. The Board finds the August 2020 and September 2020 VA examinations include consideration of the Veteran’s medical history and set forth all pertinent findings, such that the Board is able to make a fully informed decision. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). When considered together and with the entire evidence of record, the Board finds the examination reports adequate for adjudication of the Veteran’s service connection claim because they are based upon an accurate medical history and provide explanations that contain clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (once VA undertakes to provide a medical examination or opinion, it must ensure that the examination or opinion is adequate). The Board has considered whether service connection is warranted for OSA under the Persian Gulf War presumptions. It is undisputed that the Veteran’s treatment records reflect a diagnosis of OSA. The Veteran did not manifest OSA during service or in the years immediately following active duty. While the Veteran contends his OSA was diagnosed shortly after his March 1991 separation, the competent and credible medical records show that, while he had complaints of fatigue, he did not report apnea episodes until 1997/1998 after which a sleep study was recommended. Thereafter, OSA was diagnosed in 1998. The Veteran’s OSA is a specific, diagnosed disability and, thus, does not qualify for the presumptive provisions outlined in 38 U.S.C. § 1117; 38 C.F.R. § 3.317. The Veteran’s OSA, however, is eligible for consideration as a MUCMI. The Board finds that the Veteran’s OSA is not a MUCMI because both the etiology and pathophysiology of this sleep disorder are understood. Indeed, the August 2019 VA examiner found that the Veteran’s claimed OSA had a partially explained etiology. Additionally, the August 2020 VA examiner also opined that the Veteran’s OSA was less likely than not incurred while on active duty in Southwest Asia because it is unlikely that OSA would have occurred acutely during his 4.5 months which is further corroborated by the Veteran’s treatment records lacking any reference to or complaints regarding sleep during that time. Of further significance, as part of the Veteran’s Gulf War examination, the August 2019 VA examiner found that the Veteran had OSA and indicated that there were no diagnosed illnesses for which etiology was not established nor were any additional signs or symptoms reported. Also, multiple VA examiners attributed the Veteran’s OSA to noted risk factors including age, male gender, obesity, craniofacial abnormalities, and upper airway soft tissue abnormalities. Indeed, the August 2019 VA examiner opined that the likely etiology of the Veteran’s OSA was crowding of the oropharyngeal airway. While the August 2019 VA examiner referred to OSA as a MUCMI, she recognized that there was a partially understood etiology and subsequent VA examiner’s including the August 2019 examiner attributed the Veteran’s OSA to his multiple risk factors. Thus, the Veteran’s OSA is not a MUCMI under 38 C.F.R. § 3.317. The Board already found both the August 2020 and September 2020 VA examiner’s opinions regarding aggravation to be adequate as they are both based upon a review of the Veteran’s medical history and provide the rationale and bases for the opinions offered. See Barr, 21 Vet. App. at 311. When there are multiple opinions before the Board, it is within the Board’s purview to evaluate the medical evidence and favor one medical opinion over another. See D’Aries v. Peake, 22 Vet. App. 97, 107 (2008); see also Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board is to determine the credibility and probative weight to be afforded the opinions. See Guerrieri v. Brown, 4 Vet. App. 467, 471 (1993) (explaining that “the credibility and weight to be attached to these opinions... is, in the first instance, within the province of the adjudicators”). The Board assigns more probative value to the September 2020 VA examiner’s opinion that the Veteran’s OSA is aggravated by his service-connected condition because the examiner considered the Veteran’s other specified trauma and stressor related disorder symptoms in relation to sleep, despite being unable to determine a baseline of severity regarding OSA. Based on the above and resolving any doubt in favor of the Veteran, the Board finds service connection is warranted for OSA aggravated by service-connected other specified trauma and stressor related disorder. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.C. Allen, 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.