Citation Nr: 21014215 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 16-07 130 DATE: March 11, 2021 ORDER Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected post traumatic stress disorder (PTSD) and/or traumatic brain injury (TBI), is denied. FINDING OF FACT The Veteran’s obstructive sleep apnea is not proximately due to nor aggravated beyond its natural progression by his service-connected PTSD and/or TBI, and is not otherwise related to an in-service injury, event or disease. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea due to service and/or service-connected PTSD and/or TBI are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1984 to October 1991 and from March 2006 to June 2007. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2018, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for further development. The case has now returned to the Board for review. There has been substantial compliance with the Board’s prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that in February 2014 the AOJ requested the Veteran submit any relevant private treatment records for obstructive sleep apnea or submit information with which VA can assist the Veteran in obtaining private treatment records pertaining to sleep apnea. The Veteran did not submit any private treatment records or identify any outstanding private treatment record pertaining to obstructive sleep apnea. Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Although all the evidence of record has been thoroughly reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The analysis in this decision focuses on what the evidence shows or fails to show with respect to the matters decided herein. The Veteran should not assume that pieces of evidence not explicitly discussed herein have been overlooked. See Allday v. Brown, 7 Vet. App. 517, 527 (1995). Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected PTSD and/or TBI. The Veteran contends that service connection is warranted for obstructive sleep apnea on a direct incurrence basis due to his combat experiences and/or as secondary to his service-connected PTSD and TBI. See June 2020 Statement in Support of Claim. Specifically, the Veteran stated that he is requesting service connection for obstructive sleep apnea on a secondary basis due to service-connected PTSD and TBI, and on a direct basis because “everything that causes PTSD and a TBI is directly link[ed] to having a sleep disorder.” Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110. Generally, the evidence must show: (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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303 (b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309 (a). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). However, the Federal Circuit has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309 (a). As the Veteran’s current obstructive sleep apnea is not listed under 3.309(a), continuity of symptomatology is not applicable as an alternative method of establishing the second and third Shedden element. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, a disability that is proximately due to, or results from, another disease or injury for which service connection has been granted, will be considered part of the original disorder. 38 C.F.R. § 3.310 (a). Moreover, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310 (b). Thus, the question for the Board is whether the Veteran’s obstructive sleep apnea began during service or is at least as likely as not related to an in-service injury, event, or disease and/or whether his obstructive sleep apnea is proximately due to or the result of, or was aggravated beyond its natural progress by service-connected PTSD and/or TBI. The Board finds that the preponderance of the evidence weighs against finding that the Veteran’s obstructive sleep apnea began during service or is otherwise related to an in-service injury, event, or disease and/or is proximately due to or the result of, or was aggravated beyond its natural progress by his service-connected PTSD and/or TBI. Service treatment records do not contain diagnosis or treatment for obstructive sleep apnea. In a post-service treatment record dated July 2007, the Veteran reported having trouble sleeping since July 2006 when a rocket exploded 80 feet away from him. The Board acknowledges the Veteran’s in-service diagnoses of depression and insomnia in November 2006 and of insomnia in April 2007. VA treatment records show that the Veteran was discharged from service in June 2007 and established care with VA shortly thereafter. Despite having regular VA treatment, the a VA treatment record states that sleep disordered breathing was first clinically indicated in November 2011, which is approximately 4.5 years following the Veteran’s discharge from service. The clinician requested that the Veteran be evaluated for a sleep medicine referral and the Veteran was subsequently first formally diagnosed with obstructive sleep apnea in June 2013. As previously noted, in his June 2020 written statement, the Veteran asserted that his obstructive sleep apnea was caused by the same in-service events that caused his PTSD and TBI, namely his combat experiences. While the Veteran reports having experienced symptoms of insomnia, hypersomnia, loud snoring, gasping for air during sleep, awakening with dry mouth, morning headache, and difficulty concentrating since service and prior to diagnosis, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of obstructive sleep apnea. Further, the issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). While the length of time between service and medical evidence of signs and/or symptoms of obstructive sleep apnea is not dispositive, it is for consideration, and weighs against service connection for obstructive sleep apnea on a direct incurrence basis. The Veteran had a VA examination for PTSD in March 2014. The examiner opined that the Veteran’s obstructive sleep apnea is at least as likely as not proximately due to or the result of his PTSD. As rationale, the examiner stated that the Veteran did not have sleep disturbance prior to his combat experience. The Board finds that this opinion is not supported by sound reasoning and/or an adequate rationale, and thus affords it no probative value. Pursuant to the September 2018 Board opinion, the RO obtained a clarifying medical opinion to determine the etiology of the Veteran’s obstructive sleep apnea. The examiner reviewed the Veteran’s entire record. In the March 2020 addendum/clarification disability benefits questionnaire (DBQ) report, the examiner opined that the Veteran’s obstructive sleep apnea is not at least as likely as not related to an in-service injury, event, or disease, including in-service reports of difficulty falling and staying asleep and insomnia. The rationale was that sleep onset insomnia such as the Veteran complained of during service is not consistent with obstructive sleep apnea and is more likely due to his service-connected mood disorder. The examiner also opined that the Veteran’s obstructive sleep apnea was not caused or aggravated, or worsened by his service-connected PTSD. The examiner noted that many articles discuss the co-existence of obstructive sleep apnea and PTSD in Veterans and that disturbed sleep caused by obstructive sleep apnea interferes with resolution of PTSD, and thus, evaluating PTSD patients for the present of obstructive sleep apnea is important. However, the examiner further noted that obstructive sleep apnea is caused by soft tissue structures of the upper airway blocking the air passages which can result from bony abnormalities resulting in smaller than normal air passages (e.g. micrognathia), or from soft tissues that are larger than normal (e.g. patients with Down’s syndrome, patients with enlarged adenoids, and excess submucosal fatty tissue seen in obese people) and that PTSD causes none of these physical abnormalities. The examiner noted that PTSD can cause insomnia due to depression, anxiety and nightmares and that chronic pain may also interfere with sleeping, but that none of these sleeping impairments cause apnea by obstructing air flow. The examiner noted that the Veteran had risk factors for obstructive sleep apnea, including advancing age, male gender and a BMI greater than 20 kg/m2. The examiner further opined that the Veteran’s obstructive sleep apnea was not proximately due to, a result of, or aggravated beyond its natural progression by his service connected TBI. As rationale, the examiner reiterated that obstructive sleep apnea is caused by a physical obstruction of the air passages and TBI does not cause such physical obstruction of the air passages. The examiner then included a passage entitled “Pathogenisis of OSA” which noted that the pathogenesis of OSA involves a complex interaction of factors, which were then described in the passage, including upper airway size, upper airway collapsibility, neuromuscular factors, upper airway inflammation, fluid shift, clinical factors predisposing to obstructive sleep apnea and epidemiology of OSA, none of which indicated an association with TBI. The March 2020 VA examiner’s opinions are probative, because they are based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Consequently, the Board gives more probative weight to the March 2020 VA examiner’s opinion than to the March 2014 VA examiner’s opinion, which is not supported by sound reasoning or an adequate rationale. The Veteran believes his PTSD is related to an in-service injury, event, or disease and/or is secondary to his service-connected PTSD and/or TBI. The Veteran, in this case, is not competent to provide a nexus opinion regarding these issues. The issues are medically complex, as they require knowledge of the interaction between multiple organ systems in the body. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau at 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the March 2020 VA examiner’s opinions. The Board concludes that the preponderance of the evidence is against finding that the Veteran’s obstructive sleep apnea is proximately due to or the result of or aggravated beyond its natural progression by service-connected PTSD and/or TBI, or is otherwise related to his service and thus, the appeal is denied. 38 U.S.C. § 1110; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310 (a). Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Susan Leary, 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.