Citation Nr: 21015154 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 12-08 493 DATE: March 16, 2021 ORDER Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected major depressive disorder (depression), is denied. FINDING OF FACT The Veteran’s obstructive sleep apnea was not incurred in active military service and is not etiologically related to his active military service or service-connected disability. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from March 1972 to November 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was scheduled for a Travel Board hearing in September 2015 but failed to appear. He has not offered a good cause for his failure to appear or requested a new hearing; thus, his request is considered withdrawn. The Board remanded the appeal in March 2016 and September 2020 to the agency of original jurisdiction (AOJ) for further development.  The Board’s remands directives have been substantially completed.  See Stegall v. West, 11 Vet. App. 268 (1998).    Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected depression. The Veteran contends that his obstructive sleep apnea is related to his active military service or is secondary to his service-connected depression. For the reasons that follow, the Board finds that service connection is not warranted. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  Generally, to establish service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  In addition to service connection on a direct basis, service connection may also be granted for a disability that is proximately due to or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995). Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307, so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b).  Service connection may be established for chronic diseases manifesting to a compensable degree within a year after service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a).  In addition, service connection may be established on a presumptive basis for certain diseases resulting from exposure to herbicide agents, such as Agent Orange, if a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975, absent affirmative evidence to establish that the Veteran was not exposed to such herbicide agent during that service.  See 38 C.F.R. § 3.307(a)(6)(iii).  If a Veteran is presumably exposed to an herbicide agent, then there is a presumption of service connection for the specified enumerated diseases.  38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a) and 3.309(e).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).    Turning to the evidence of record, the Board notes that the first element of service connection is met. The Veteran has been diagnosed with an obstructive sleep apnea. See May 2011 VA treatment record and May 2020 VA examination. Next, it is noted that while the Board previously found that the Veteran is presumed to have been exposed to Agent Orange during service, sleep apnea is not one of the disabilities listed under 38 C.F.R. § 3.309(e). See November 2020 Board decision. As such, the Veteran’s sleep apnea cannot be service connected on a presumptive basis of herbicide exposure. The Board also notes that service connection is not warranted on a direct or secondary basis. The Veteran’s service treatment records (STRs) do not show complaints, treatment or diagnosis related to his sleep apnea. In fact, the Veteran was not diagnosed with sleep apnea until many years after service. See May 2011 VA treatment record. Thus, the Board finds that the second element of service connection is not satisfied. As to the nexus element, the Veteran underwent a VA examination for sleep apnea in May 2020. The Veteran reported that he started having sleep and dream problems while in service. His main complaints were inability to sleep the entire night, waking up gasping for air, falling asleep easily during the day, and experiencing occasional headaches when he wakes up. He reported a slight improvement of his symptoms when using continuous positive airway pressure (CPAP) machine. The examiner opined that the Veteran’s obstructive sleep apnea was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner based this opinion on the fact that a review of the Veteran’s service records did not reveal evidence of sleep apnea or symptoms consistent with sleep apnea while in service. Regarding service connection on a secondary basis, the examiner further opined that the Veteran’s sleep apnea was less likely than not caused or aggravated by his service-connected depression. The examiner explained that depression is not a known cause of sleep apnea and the medication listed in the Veteran’s treatment records is not consistent with causing relaxation of the oropharyngeal muscles resulting in sleep apnea. The examiner also noted that the Veteran’s body mass index (BMI) was elevated in 2010, prior to his depression diagnosis. Pursuant to September 2020 Board remand, the Board found that May 2020 VA opinion was inadequate and directed that the VA examiner issue an addendum opinion. In December 2020, the VA examiner issued an addendum opinion addressing the etiology of the Veteran’s obstructive sleep apnea. The examiner opined that the Veteran’s obstructive sleep apnea was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner addressed the Veteran’s statements regarding sleep and dream problems during service and the examiner noted that the Veteran’s reports of these symptoms do not imply a diagnosis of sleep apnea. The examiner explained that sleep problems may have several etiologies. The examiner added that a review of the Veteran’s records indicates that he had problems after returning from Thailand. The examiner concluded that depression and difficulty with transitioning to a civilian life are more likely the reasons for the Veteran’s reported sleep problems. With regard to service connection on a secondary basis, the examiner opined that the Veteran’s sleep apnea was less likely than not caused or aggravated by his service-connected depression. The examiner again noted that depression is not a known cause of sleep apnea. The examiner explained that medications used to treat depression may cause weight gain or cause sleep apnea. However, the Veteran’s medication is not consistent with causing relaxation of the oropharyngeal muscles resulting in sleep apnea. The examiner added that while depression may cause weight gain resulting in a higher risk of sleep apnea, the fact that the Veteran worked as a truck driver for 25 years and has hypothyroidism are the more likely causes of his weight gain. The examiner noted that the Veteran’s BMI was elevated in 2010, indicating weight gain as the more likely cause of the Veteran’s sleep apnea, rather than his depression. The examiner also opined that it is less likely than not that the Veteran’s obstructive sleep apnea was aggravated beyond its natural progression by his service-connected depression. The examiner explained that upon review of the Veteran’s medical records, there is no evidence indicating a difficulty with treating his sleep apnea due to depression. The examiner pointed out that in fact, the evidence of record shows a resolution of sleep apnea symptoms with the use of CPAP. Based on the foregoing, the examiner concluded that there is no evidence of aggravation of the Veteran’s sleep apnea beyond the natural progression due to his depression. The Board finds that the December 2020 addendum adequately addresses the Veteran’s claim. The examiner considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. The examiner also offered a conclusion with supporting data as well as reasoned medical explanations connecting the two.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  Most importantly, there is no contrary medical opinion of record.  The Board also finds that the medical opinion is consistent with other objective evidence of record. Thus, the Board finds VA opinion probative to address the Veteran’s claim.   Further, a review of the Veteran’s medical records reveals that the Veteran has a long history of smoking and associated symptoms of shortness of breath. An April 2011 VA treatment note shows that the Veteran continued to smoke cigarettes and experience shortness of breath despite being on a chronic obstructive pulmonary disease (COPD) and asthma medication. The treating pulmonologist noted that the Veteran has an ongoing untreated sleep apnea and recommended a sleep study to address his shortness of breath complaints. The pulmonologist did not reference service or any event of service. The VA treatment note also shows that the disability became manifest many years post service, which is also a factor that weighs against the Veteran’s claim. Accordingly, the Board finds that the evidence of record indicates that the Veteran’s obstructive sleep apnea was not incurred in, and is not etiologically related to, his active military service. Additionally, the Board notes that there is no probative evidence suggesting that the Veteran’s sleep apnea is in any way related to his in-service herbicide exposure. The Board acknowledges the Veteran’s assertions that his sleep apnea was caused or aggravated by his service-connected depression or related to his military service, including his statements of sleep and dream problems during service. Even though the Veteran is competent to report sleep apnea symptoms, he is not competent to provide a nexus opinion in this case. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As noted, the Board finds the December 2020 VA opinion more probative to address the Veteran’s claim.  The Board further acknowledges the contentions of the Veteran’s representative, arguing that the May 2020 VA examiner based the opinion on inaccurate factual premise. See July 2020 Correspondence. Specifically, the representative pointed out that the Veteran’s elevated BMI did not pre-date his depression diagnosis. However, in the December 2020 addendum opinion, the examiner explained that the Veteran’s BMI was elevated in 2010. The Veteran was diagnosed with sleep apnea in 2011. The examiner added that risk factors such as the Veteran’s job driving a truck for 25 years and his hyperthyroidism are more likely the cause of his weight gain, rather than his depression. Thus, as noted, the Board finds the December 2020 addendum opinion adequate to address the Veteran’s claim. Accordingly, the Board concludes that the Veteran’s sleep apnea was not caused or aggravated by his service-connected depression. The Board also recognizes the Veteran’s contention that he has experienced symptoms of sleep apnea in service and since service, and that his statements suggest continuity of symptomatology. However, the continuity of symptomatology framework only applies to certain enumerated diseases. See 38 C.F.R. § 3.309(a).  Sleep apnea is not one of the enumerated diseases, and thus, the continuity of symptomatology theory of entitlement is not for application. In light of the foregoing, the Board finds the most competent and probative evidence of record weighs against a finding of service connection for the Veteran’s sleep apnea. As such, service connection is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); Gilbert, supra. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Kuzniar, 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.