Citation Nr: 21014649 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 20-06 235 DATE: March 15, 2021 ORDER Service connection for obstructive sleep apnea is denied. FINDINGS OF FACT 1. Obstructive sleep apnea did not manifest in service and is unrelated to service. 2. Obstructive sleep apnea is not caused by or aggravated by a service-connected disease or injury. CONCLUSION OF LAW 1. Obstructive sleep apnea was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 5107 (b); 38 C.F.R. §§ 3.102, 3.303. 2. Obstructive sleep apnea is not proximately due to, the result of or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1996 to October 2001. This appeal stems from an April 2018 rating decision. In an October 2020 decision the Board remanded the claim for service connection for obstructive sleep apnea to obtain a new VA opinion as to whether sleep apnea was proximately due to or aggravated by the Veteran’s service-connected persistent depressive disorder with anxious distress. The new opinion was obtained in December 2020. The Board’s prior remand instructions have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Service connection for obstructive sleep apnea. The Veteran seeks service connection for obstructive sleep apnea. He primarily asserts that sleep apnea is secondary to his service-connected persistent depressive disorder with anxious distress. Alternatively, the Veteran’s representative has argued that the current sleep apnea is related to or the same as documented in-service sleep problems. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service or for aggravation of a preexisting injury suffered or disease contracted in line of duty. 38 U.S.C. § 1110. In general, to establish a right to compensation for a present disability, 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 – the so-called “nexus” requirement.” Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disability was incurred in service.38C.F.R. §3.303 (d). Service connection is warranted on a secondary basis for disability which is proximately due to, aggravated by or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (b). For secondary service connection to be granted, generally there must be (1) evidence of a current disability; (2) evidence of a service-connected disease or injury; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Initially, the Board notes that the Veteran served in the Southwest Asia theater of operations during the Persian Gulf War. However, there is a recognized diagnosis of obstructive sleep apnea, which does not allow for a “Gulf War Syndrome” claim as an undiagnosed illness or a multisystem illness. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317. As such, the Gulf War provisions are not applicable to this appeal. We also note that the Veteran does not assert that his sleep apnea is in any way related to Gulf War exposures. There is obstructive sleep apnea, diagnosed in a November 2012 sleep study, and noted on a December 2017 VA sleep apnea examination report. The Veteran’s VA treatment records reflect ongoing treatment for obstructive sleep apnea. The issue for the Board thus is whether the Veteran’s sleep apnea began during service, is at least as likely as not related to service, or is secondary to his service-connected persistent depressive disorder with anxious distress. We find that the preponderance of the evidence is against finding that the Veteran’s sleep apnea is related to service or a service-connected disease or injury. Service treatment records show no findings, treatments, or diagnoses specifically for obstructive sleep apnea. The Veteran did report trouble sleeping on multiple occasions. In March 1998 he reported depression for the past three months, and his symptoms included decreased sleep. He had a psychiatric consultation on April 1, 1998 where he complained of depressed mood for three months and reported symptoms that included insomnia. At a psychiatry appointment on April 16, 1988 the treating physician noted depressive symptoms that included disturbed sleep and an inability to return to sleep. On April 27, 1998 he continued to complain of difficulty remaining asleep and waking frequently, and was assessed with a major depressive disorder, dysthymia, and alcohol abuse. An April 2001 examination report shows a normal clinical evaluation of the nose, sinuses, mouth, and throat. The Veteran reported frequent trouble sleeping and excessive worry on the April 2001 Report of Medical History. He was treated for seasonal allergies in May 2001 and reported difficulty sleeping due to his symptoms, which consisted of itchy and watery eyes, sneezing, runny nose, and sore throat. Post-service treatment records show the Veteran reported poor sleep and concentration and many nightmares at an October 2010 mental health consultation. He also reported difficulty falling asleep and maintaining sleep. He was provided a VA sleep study in November 2012 that showed mild to moderate obstructive sleep apnea. He was provided a VA sleep apnea examination in December 2017. The examiner noted that the Veteran underwent a sleep study in November 2012 to evaluate symptoms of breathing pauses and snoring and was diagnosed with sleep apnea. the Veteran used a CPAP machine. The examiner determined that it was less likely than not that the Veteran had a chronic disability pattern related to sleep apnea due to Gulf War exposure and explained that there is no current medical literature linking obstructive sleep apnea with exposure to the Gulf War environment, and that obstructive sleep apnea is a condition with a clear and specific etiology and diagnosis. We again note that the Gulf War presumptions are inapplicable in this appeal. An addendum opinion was obtained in April 2018 and the examiner determined that the Veteran’s sleep apnea syndrome was less likely than not proximately due to or the result of his service-connected persistent depressive disorder with anxious distress. The examiner explained that there was no evidence of a nexus between sleep apnea and the Veteran’s service-connected psychiatric disorders, and that risk factors relevant to the Veteran for sleep apnea were male sex, age 40 or above, and obesity. The examiner concluded that obesity was the most likely etiology for his obstructive sleep apnea. An addendum opinion was provided in December 2020 regarding secondary service connection for sleep apnea. The examiner determined that sleep apnea was less likely than not proximately due to, the result of, or aggravated by persistent depressive disorder with anxious distress. The examiner explained that psychological conditions, including depression and anxiety, do not cause or aggravate obstructive sleep apnea (OSA) which is established medical knowledge and practice. There is no physiologic or anatomic mechanism by which they can do so, including medications used to treat psychological conditions. OSA is due to obstruction of the upper airway associated with apneic episodes. Furthermore, there is no evidence of aggravation of the Veteran’s OSA beyond the natural course due to any cause. The Veteran’s baseline would have been established with the initial sleep study and CPAP settings. Adjustments of CPAP settings do not constitute progression beyond the natural course of OSA. OSA tends to worsen overtime, often requiring increased CPAP requirements. It is less likely than not due to events in service or to psychological conditions, including depression and anxiety, or the medications used to treat them. Medications act via a CNS pathway and the effects of any medication would ameliorate upon discontinuation of the medication or dose adjustment. Regardless, this does not aggravate the primary mechanism of OSA, and is mediated through a separate CNS pathway. Sleep disturbances are common with psychological conditions, including insomnia, easy awakening, daytime fatigue nightmares, etc. These too are mediated through a CNS pathway, but do not act on the primary mechanism of OSA. In summary, OSA is not due to events in service and it is not due to the Veteran’s psychological conditions, and the same applies for aggravation. Sleep disturbances due to psychological conditions may contribute to daytime somnolence, etc., but this is a separate, independent effect. They do not impact the mechanism of OSA. In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). For a medical opinion to be given weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). A medical opinion that is factually accurate, fully articulated, and based on sound reasoning carries significant weight. Id. at 304 (2008). In this case, the Board accepts the April 2018 and December 2020 VA opinions that the Veteran’s obstructive sleep apnea is less likely than not related to a service-connected disease or injury as probative medical evidence on this point. The examiners rendered their opinions after reviewing the claims file and relevant medical records. The examiners noted the Veteran’s pertinent history and provided reasoned conclusions. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). In particular, the December 2020 opinion explains in detail why psychiatric disorders and medications do not cause or aggravate obstructive sleep apnea. The February 2020 examiner noted that psychiatric disorders cause sleep difficulties such as the problems the Veteran reported during service, but determined that they do not act on the primary mechanism of obstructive sleep apnea. Pertinently, there is no contrary opinion of record that attributes the Veteran’s sleep apnea to his service or to his service-connected persistent depressive disorder with anxious distress. The Board has considered the Veteran and his representative’s statements that sleep apnea is secondary to service-connected persistent depressive disorder with anxious distress or is otherwise related to the documented in-service sleep problems. The Veteran is competent to provide evidence of that which he experiences, including her symptomatology and medical history. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In addition, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or, (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)); Kahana v. Shinseki, 24 Vet. App. 428, 433, n.4 (2011). However, competence must be distinguished from probative weight. Although the Veteran is competent to relate what he experiences through the senses, the lay evidence is lacking in detail to support the conclusion that the Veteran had sleep apnea during service. Rather, the service treatment records show his in-service sleep difficulties were related to depression, anxiety, and allergies. Notably, he was not assessed with sleep apnea during service, nor was he suspected of having sleep apnea during service. Obstructive sleep apnea was first identified in November 2012, over a decade after the Veteran separated from service. There is also no indication in the record that a medical professional has related obstructive sleep apnea to the Veteran’s service or his service-connected psychiatric disorders. Furthermore, the Veteran is not competent to address the etiology of his sleep apnea, to include causation or aggravation by service-connected disease or injury, as making such a connection would require specialized education, training, or experience that the Veteran does not possess. See 38 C.F.R. § 3.159 (a)(2); Jandreau,492 F.3d at 1377. The lay assertions are therefore afforded less probative weight, and less credibility than, than the medical evidence of record. The Veteran’s representative has cited several article and scientific journal studies in support of this claim. The Board notes medical treatise evidence can, in some circumstances, constitute competent medical evidence. See Wallin v. West, 11 Vet. App. 509, 514 (1998); see also 38 C.F.R. § 3.159 (a)(1) (competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses). The representative has cited a WebMD article titled “Sleep Apnea Linked to Depression” stating new research conducted an epidemiologist at the Centers for Disease Control had showed that snorting, gasping, or short interruptions in breathing during sleep may be linked to depression symptoms. The article also cites a sleep specialist and states that depression might result from untreated sleep disorders, and poor-quality sleep might worsen depression symptoms. The article relates that the new study does not settle whether sleep apnea causes depression. Although relevant to the Veteran’s claim, the article is of limited probative value. The article is largely speculative, suggesting that sleep apnea symptoms “may” be linked to depression symptoms. In addition, the article suggests that depression may result from sleep apnea but says nothing about whether sleep apnea results from or is aggravated by depression or anxiety. The medical article provides general information as to the possibility that a relationship exists between sleep apnea and depression and anxiety but is speculative and tends to suggest that sleep apnea worsens depression. The WebMD article refers to a CDC study titled “Sleep Disordered Breathing and Depression among U.S. Adults: National Health and Nutrition Examination Survey, 2005-2008,” which includes the statement that “[t]he cross-sectional nature of the study did not permit us to assess causality in the relationship between SDB [sleep disordered breathing] and depression.” A study titled “Obstructive sleep apnea severity correlates with cellular and plasma oxidative stress parameters and affective symptoms” published in March 2012 in the Journal of Molecular Neuroscience concludes that individuals with obstructive sleep apnea syndrome show an increase in the production of superoxide radical and a decrease in serum nitrates and nitrites levels, signs of a state of oxidative stress, and that the more severe the obstructive sleep apnea syndrome, the more fragmented the sleep and the greater the nocturnal hypoxemia, the more severe the oxidative stress state and the greater is the incidence of daytime symptoms, especially sleepiness and depressive and anxiety symptoms. A study titled “Depression and Obstructive Sleep Apnea (OSA)” published in April 2005 in the Annals of General Psychiatry concludes that there is a complex relationship between depression and OSA in terms of clinical presentation, underlying pathophysiology, and treatment. However, the study does not suggest that sleep apnea is aggravated or due to depression and anxiety. The study notes that “[t]he two main factors suspected to be responsible for depressive symptoms in OSA are sleep fragmentation and oxygen desaturation during sleep.” This indicates that the sleep apnea symptoms are suspected to be responsible for depressive symptoms and is speculative. Although the authors note that sleep apnea and depression may share a common neurobiological risk factor, the involvement in the pathophysiology of sleep apnea remained to be clarified at the time of the study. We accept that the study suggests a relationship between depression and anxiety and sleep apnea. However, the article is largely irrelevant regarding whether depression or anxiety aggravate or cause sleep apnea. furthermore, the article states that basic research was still required to investigate a causal relationship between depression and sleep apnea. An article titled “Psychological burden of patients diagnosed with obstructive sleep apnea” published in a Greek psychology journal shows that a high prevalence of anxiety and depressive symptoms were observed in a group of 29 patients with obstructive sleep apnea syndrome. Although the study confirmed the high prevalence of anxiety and depressive symptoms and sleep apnea, there is little information regarding whether sleep apnea is caused by or aggravated by the depressive and anxiety symptoms. The Veteran’s representative has cited a study titled “Obstructive sleep apnea severity correlates with cellular and plasma oxidative stress parameters and affective symptoms” published in the Journal of Molecular Neuroscience. The authors conclude that (1) individuals with obstructive sleep apnea syndromes (OSAS) show an increase in the production of superoxide radical and a decrease in serum nitrates and nitrites levels, which are objective signs of a state of oxidative stress; and (2) the more severe the OSAS, the more fragmented the sleep and the greater the nocturnal hypoxemia, the more severe is the oxidative stress state and the greater is the incidence of daytime symptoms, especially sleepiness and depressive and anxiety symptoms. although suggesting a relationship between sleep apnea and depression and anxiety, the study suggests that sleep apnea may cause the depressive and anxiety symptoms. While a June 2003 article titled “Polysomnography in Patients With Obstructive Sleep Apnea” notes that many patients who underwent sleep studies had psychiatric diagnoses such as anxiety and depression, the article contains little to no information regarding whether sleep apnea is due to or aggravated by anxiety and/or depression. A March 2014 journal article titled “The correlation of anxiety and depression with obstructive sleep apnea syndrome” concludes that the frequency of anxiety in obstructive sleep apnea syndrome (OSAS) patients is higher than in the general population, and that it is more likely that OSAS patients present with anxiety and depression than the typical symptoms. The purpose of the study was noted as “to determine the prevalence of depression and anxiety in patients diagnosed with OSAS” and the authors admitted that further investigation in the area was necessary to understand the relationship between depression, anxiety, and sleep apnea. While we accept that the study suggests a relationship between sleep apnea, depression, and anxiety, the study is silent as to whether that relationship is one of causation or aggravation. While these studies and articles involve the relevant disorders, they are ultimately not probative as to the issue of whether the Veteran’s sleep apnea is proximately due to or aggravated by his service-connected connected persistent depressive disorder with anxious distress. As noted above, these studies essentially conclude that there is a potential relationship, but do not comment on whether sleep apnea is aggravated by the relevant psychiatric disorders and symptoms. Treatise evidence must “not simply provide speculative generic statements not relevant to the veteran’s claim.” Wallin, 11 Vet. App. at 514. The medical articles provide general information as to the possibility that a relationship exists between the Veteran’s service-connected psychiatric disorders and sleep apnea. Some of the articles suggest that sleep apnea causes or aggravates anxiety or depressive symptoms, which is irrelevant to the questions currently before the Board. Many of the articles are also speculative. While the presence of a relationship between anxiety, depression, and sleep apnea is relevant to the Veteran’s claim, the presence of a relationship alone is not enough to grant service connection for the Veteran’s obstructive sleep apnea as proximately due to or aggravated by his service-connected persistent depressive disorder with anxious distress. We note that the submitted medical treatise evidence does not contradict the February 2020 examiner’s opinion that psychological conditions, including depression and anxiety, do not cause or aggravate obstructive sleep apnea. In sum, there is insufficient competent and probative evidence linking the Veteran’s obstructive sleep apnea directly to his service or secondarily to a service-connected disease or injury. While service treatment records show sleep difficulties, these were related only to depression, anxiety, and allergies. Despite the documented sleep difficulties, there is no evidence the Veteran had sleep apnea during service. The probative evidence shows sleep apnea was first identified in November 2012, many years after he separated from service, indicating a remote onset unrelated to service and his in-service sleep problems. Furthermore, there is no competent or probative evidence that a service-connected disease or injury caused apnea or aggravated apnea. Although the Veteran and his representative have submitted studies and articles in support of the claim, they are not probative evidence that the Veteran’s depression and anxiety caused or aggravate his sleep apnea. The only medical nexus opinions of record are negative. For the foregoing reasons, the preponderance of the evidence is against the claim. The benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morse 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.