Citation Nr: 21014489 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 15-36 493 DATE: March 12, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected post-traumatic stress disorder (PTSD), is denied. REMANDED Entitlement to an increased rating for left ankle sprain, evaluated as 10 percent disabling prior to March 4, 2020, and as 20 percent disabling thereafter, is remanded. FINDING OF FACT The objective medical evidence shows that the Veteran’s OSA is not caused by an event, injury or illness during active service, nor is it proximately due to, the result of, or aggravated by service-connected PTSD. CONCLUSION OF LAW The criteria for service connection for OSA due to service or a service-connected disability have not 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 in the United States Air Force from June 1991 to June 1997. This matter was previously remanded by the Board in September 2018 and August 2020. The issues have been returned to the Board for appellate review. While the Board regrets the additional delay, the issue of entitlement to increased ratings for a left ankle sprain must be remanded for substantial compliance with the August 2020 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected post-traumatic stress disorder (PTSD) Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a veteran 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established on a secondary basis for disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); Allen v. Brown, 8 Vet. App. 374 (1995). To prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. The VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran is seeking entitlement to service connection for OSA, to include as secondary to his service-connected disorders, specifically post-traumatic stress disorder (PTSD). The Veteran contends that his service-connected PTSD is causally related to his current OSA. The Veteran was diagnosed with obstructive sleep apnea (OSA) in a July 2005 sleep study. He has utilized a CPAP machine since that time. The Veteran’s service treatment records (STRs) are silent as to any complaints or treatment for sleep problems or other symptoms related to OSA. Significantly, the Veteran’s April 1997 separation examination shows normal lungs/chest. Post-service VA treatment records show that the Veteran is followed by the sleep program for OSA with CPAP. The Veteran was afforded a VA examination for sleep apnea in February 2016. The examiner confirmed the Veteran’s diagnosis of OSA. The Veteran reported that he was unsure of the onset of symptoms relating to OSA, but his wife urged him to seek treatment due to his snoring and sleep disturbances. He also stated that his roommates during deployment would yell at him for snoring. The examiner opined that it is less likely than not that the Veteran’s OSA is proximately due to or the result of his service-connected PTSD. As rationale, he stated that current medical literature does not show a causal relationship between having PTSD (a mental health disorder) and then in turn developing OSA (a sleep related breathing disorder). He further explained that the important risk factors for OSA are advancing age, male gender, obesity, and craniofacial or upper airway soft tissue abnormalities. Subsequently, the Veteran submitted a May 2015 medical treatise article entitled “High risk of sleep apnea in young veterans with PTSD,” which suggested that PTSD may aggravate sleep apnea as the probability of having sleep apnea increased with the increasing severity of PTSD symptoms. Pursuant to the September 2018 Board remand, an addendum opinion was obtained dated February 2020. The examiner opined that the Veteran’s OSA is less likely than not related to service or proximately due to or aggravated by the Veteran’s service-connected PTSD. As rationale, he explained that the Veteran’s STRs were negative for any complaints of any symptoms related to OSA, and he specifically denied sleeping problems during service. Further, he was not diagnosed with OSA until 2005, 8 years post discharge. He addressed the Veteran’s lay statement that roommates during deployment would yell at him for snoring but noted that this is a subjective and non-specific statement that cannot solely be attributed to sleep apnea diagnosed many years after service. The examiner also stated that at the time of the Veteran’s 2005 sleep study and diagnosis, he was noted to be obese. He explained that review of current medical literature does not show a causal relationship between PTSD and OSA and that OSA has a clear and specific etiology characterized by recurrent obstruction of the pharyngeal airway during sleep, with resultant hypoxia and sleep fragmentation. He noted that obesity has been shown to be a strong risk factor for OSA, and the Veteran’s obesity is more likely the cause of any aggravation. He addressed the medical literature submitted by the Veteran and explained that the articles suggest some correlation between PTSD and OSA but do not establish any causation between the two conditions. In June and July 2020 Correspondence, the Veteran submitted additional articles suggesting an etiological link between PTSD and OSA and in support of his claim for direct service connection. Therefore, the Veteran was afforded another VA examination in December 2020. The examiner opined that the Veteran’s OSA is less likely than not related to his military service. He further opined that the condition is not shown to be proximately due to or aggravated by service-connected PTSD. As rationale, he explained that there are no indications of symptoms of OSA during service or until many years after service. He noted that the Veteran’s obesity is likely a cause of the Veteran’s OSA. The examiner addressed each of the articles submitted by the Veteran and found that no medical literature established causation between PTSD and OSA, but only suggested some correlation. Therefore, the examiner found no link between the Veteran’s current OSA and his service or service-connected PTSD. The Board determines that the preponderance of the evidence shows that the Veteran's current OSA was not incurred in or related to service nor was it caused or aggravated by his service-connected PTSD. The Board finds the reasoning of the December 2020 VA examiner to be highly probative as the examiner indicated a detailed review of the evidence, provided a fully supported rationale consistent with the evidence, and considered the Veteran's medical history. Importantly, the examiner addressed the medical literature submitted by the Veteran and explained that while the articles indicated some correlation between OSA and PTSD, there is no established medical literature suggesting that PTSD can cause or aggravate OSA. The Board notes that Veteran is competent to report his observable symptoms; however, making a determination regarding the etiology of a disability requires medical expertise and knowledge which is beyond the scope of a lay person’s knowledge. Thus, the Veteran’s assertions are not competent evidence of a nexus between his current OSA and service or a service-connected disability. 38 C.F.R. § 3.159(a)(1), (2). In sum, the most probative evidence of record demonstrates that the Veteran's OSA was not incurred in or related to service, nor was it caused or aggravated by his service-connected PTSD. Therefore, the Veteran's claim for service connection for OSA is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. 38 U.S.C. § 5107. REASONS FOR REMAND Entitlement to an increased rating for left ankle sprain, evaluated as 10 percent disabling prior to March 4, 2020, and as 20 percent disabling thereafter, is remanded. Regrettably, the Board finds that further development is required with respect to the Veteran's increased rating claims for his left ankle sprain. Here, in the August 2020 Board remand, the Board instructed the examiner to address the severity of the Veteran’s service-connected left ankle condition from December 2012 to current. Specifically, the Board found that the VA examinations of record from September 2013 and April 2015 were inadequate in light of Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board advised that if the examiner was unable to provide a retrospective opinion, the examiner must provide a thorough rationale explaining why such opinion is not provided in the examination. Although the VA examiner provided a thorough VA examination addressing the present state of the Veteran’s left ankle disability, the VA examiner failed to provide a retrospective opinion as to the period prior to December 2, 2020. Furthermore, the VA examiner failed to give a rationale as to why such opinions could not be provided. As such a remand is warranted to obtain the requested retrospective opinions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The matter is REMANDED for the following action: 1. With respect to the Veteran's left ankle sprain, REQUEST A RETROSPECTIVE OPINION FROM A QUALIFIED MEDICAL PROFESSIONAL. The examiner is asked to the extent possible to provide a retrospective opinion for the period prior to December 2, 2020, based on the Veteran's lay statements as well as the medical evidence of record addressing the following: (a) provide a retrospective opinion addressing prior range of motion of the Veteran's left ankle, painful motion (and at what point it started), additional loss of motion after repetitions, and function loss due to pain, considering active and passive motion as well as weight-bearing and non-weight-bearing considerations throughout the claims period. (b) Any additional impairment on use or in connection with flare-ups should be described in terms of the degree of additional range of motion loss. The examiner should specifically describe the severity, frequency, and duration of flare-ups; name the precipitating and alleviating factors; and estimate, per the veteran, to what extent, if any, such flare-ups affect functional impairment for the entire period on appeal. If it is determined that another VA examination is required in order to provide the requested opinions, such examination should be arranged. If the examiner is unable to provide a retrospective opinion, the examiner must provide a thorough rationale explaining why such opinion is not provided in this examination.   2. Thereafter, review the record to determine that all action has been fully accomplished. If not, undertake corrective action. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Sneeringer, 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.