Citation Nr: 21015263 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 14-26 829 DATE: March 17, 2021 ORDER Entitlement to service connection for sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD), is denied. FINDING OF FACT Sleep apnea was not manifested during the Veteran’s active duty service, is not related to active service, and is not due to or aggravated by a service-connected disability to include posttraumatic stress disorder. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD), have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from December 1967 to December 1969. The Veteran was afforded a hearing before the undersigned in July 2017. A copy of the transcript is of record. A November 2019 Board decision remanded the issue on appeal for further development. That development has been accomplished, and the claim has now been returned to the Board for further action. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD). Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Generally, service connection requires: (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of an injury or disease; and (3) evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). Pursuant to § 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. at 448 (1995). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102 ; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Veteran asserts that his diagnosed obstructive sleep apnea is related to his active service, to include as due to his service-connected PTSD. At his July 2017 hearing, the Veteran testified that he never felt rested while he was in service, and that many people around him noticed that he had stopped breathing while he slept. Alternately, he testified that he thought his diagnosed sleep apnea was related to his PTSD because he often could not sleep as a result of his anxiety, and he would wake up in the middle of the night during panic episodes. Initially, the Board notes that the Veteran’s service treatment records are silent concerning sleep apnea symptoms, such as insomnia or drowsiness, or treatment or diagnosis of sleep apnea. His July 1967 service entrance examination noted the Veteran had no trouble sleeping, and his October 1969 service discharge examination similarly noted no trouble with sleeping or experiencing nightmares. Post-service medical treatment records reflect diagnosis and treatment for sleep apnea without etiologic opinion. August 2004 medical records confirm a diagnosis of obstructive sleep apnea as well as instructions for use of a CPAP mask. A September 2020 VA examination report confirmed diagnosis of obstructive sleep apnea. The examiner opined that it was less likely than not that the Veteran’s diagnosed sleep apnea was related to his active service. As rationale, the examiner stated that there was no mention of sleep apnea in the Veteran’s service treatment records, there was not a diagnosis of sleep apnea until 35 years after service discharge, and there was no positive nexus between active service and the Veteran’s sleep apnea. He also opined that the Veteran’s sleep apnea was less likely than not related to his service-connected PTSD. As rationale, the examiner stated that sleep apnea is a structural upper airway obstruction during sleep and there is no research that shows a direct causal relationship between PTSD and sleep apnea. Instead, the examiner noted other risk factors which might cause sleep apnea such as obesity, gender, age, and upper airway crowding. A December 2020 VA examination report similarly opined that the Veteran’s sleep apnea was less likely than not related to or aggravated by his service-connected PTSD. As rationale, the examiner stated that while the Veteran’s PTSD can cause sleep disturbance, it does not cause a physical obstruction in the upper airway. After review of the record, the examiner also stated that while the Veteran does have insomnia caused by PTSD, this is a separate condition from sleep apnea. He further noted that the Veteran’s sleep apnea seemed to improve from 2004 to 2018 without any treatment for PTSD. As there was sleep apnea improvement without treatment for PTSD, and as the Veteran’s sleep apnea was well controlled with the appropriate CPAP mask, there was no indication that the Veteran’s PTSD aggravated his sleep apnea. Two August 2017 statements from C.M. and T.W. state that since October 2001 they have collectively witnessed the Veteran stop breathing and gasp for air while sleeping. After weighing all the evidence, the Board is unable to attribute the Veteran’s post-service development of sleep apnea to his active service or his service-connected PTSD. The Board notes that although the medical evidence reflects a current diagnosis of obstructive sleep apnea, there is no objective medical evidence which provides a nexus between the Veteran’s diagnosed sleep disorder to either active duty or any service-connected disability. No diagnosis, symptoms, or etiology of a sleep disorder is noted in his service treatment records, and post-service medical records reflect only diagnosis of obstructive sleep disorder as early as 2004, or over 30 years after service discharge. Indeed, both submitted lay statements only detail observation of the Veteran’s sleep apnea symptoms as early as 2001, or 30 years after service discharge. While not a dispositive factor, the passage of time between the Veteran’s discharge and an initial diagnosis for the claimed disorder is one factor that weighs against the Veteran’s claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Thus, there is no evidence of record to indicate that symptoms of obstructive sleep apnea had their onset during active service or within one year of his separation other than the Veteran's own lay assertions. The Veteran, and his friends C.M. and T.W., are competent to report the Veteran’s symptoms, such as difficulty sleeping, but to the extent that such assertions purport to establish the etiology of any such disability, such assertions do not provide persuasive support for the claim as neither the Veteran nor his friends are shown to possess the medical training to render competent opinions about such complex medical matters. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Thus, the Board affords the lay opinions no probative value. Additionally, the Board has considered the Veteran's alternative theory of secondary service connection, specifically, that his sleep apnea was caused or aggravated by his PTSD. However, there is no probative medical opinion of record indicating that the Veteran's obstructive sleep apnea is proximately caused or aggravated by his service-connected PTSD, and the Veteran is equally not found to be competent to render an etiologic opinion on this theory of causation. As such, the Board finds the opinions of the September 2020 and December 2020 VA examiners highly credible, probative, and persuasive against a finding of service connection on any theory because the opinions are based on the Veteran's pertinent medical history and both give a thorough, well-explained rationale for all opinions; the report provides an adequate basis for the diagnosis and opinions rendered. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Therefore, the Board finds that the preponderance of the evidence is against a grant of service connection for obstructive sleep apnea on both a direct and secondary basis. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable, and service connection for obstructive sleep apnea must be denied. 38 U.S.C. § 5107(b). Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Peden 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.