Citation Nr: 21016013 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 13-12 338 DATE: March 19, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA), including as secondary to service-connected posttraumatic stress disorder (PTSD), is denied. FINDING OF FACT The Veteran’s OSA not secondary to service-connected PTSD, and is not otherwise related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for service connection for OSA due to service or service-connected PTSD are not 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 Navy from March 1971 until his discharge in February 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In a July 2018 decision, the Board denied entitlement to service connection for obstructive sleep apnea. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In July 2019, the Court granted a Joint Motion for Remand (JMR) vacating the denial and remanding the matter for further consideration. Pursuant to the Court remand, the matter was remanded by the Board in December 2019 to obtain a medical opinion. In October 2020, the Board again remanded for a new VA medical opinion consistent with the JMR. 1. Entitlement to service connection for OSA, to include as secondary to PTSD. The Veteran contends that his OSA developed during service. Alternatively, he contends, through his representative, that it developed secondary to PTSD or is aggravated by PTSD. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Alternatively, the question for the Board is whether OSA is proximately due to or the result of or was aggravated beyond its natural progress by service-connected disability. The Board concludes that although the Veteran has a diagnosis of OSA, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. The preponderance of the evidence is also against finding it was caused or aggravated by his PTSD. The Veteran has claimed that OSA developed in service. In an April 2012 statement, he claimed that he began having trouble with daytime tiredness and constant sleepiness on active duty, which had continued until he was diagnosed with OSA. In his November 2012 notice of disagreement, he claimed that while on active duty, “I had the symptoms of sleep apnea. I did not know sleep apnea was a disability until recently.” The Veteran’s service treatment records include a September 1974 complaint of weight loss (25 pounds over the previous six months), diarrhea, and constant sleeping with difficulty waking up. They are otherwise silent for reports of a sleep disorder, including in multiple treatment records in the months after that complaint and the February 1975 separation examination. Following service, VA medical records are negative for findings of OSA until April 2012, almost 40 years after leaving active service. The Board notes that although there were occasional complaints regarding sleep and fatigue, such as in August 1998, February 2001, and June 2004, no finding of OSA or referral for a sleep study was made until April 2012. For example, a June 2004 VA medical record documented a report of fatigue and increased weight. The Veteran reported he was getting a little exhausted lately and worked as a bus driver from 7 am to 9 am and 1:30 to 4:30 pm and from 11 pm to 7 am. A February 2001 VA medical record noted that the Veteran had anxiety and sleep disturbance. The Board notes that the Veteran is separately service connected for PTSD which also contemplates sleep disturbance. The VA medical records generally do not contain any medical opinions as to the cause of the OSA. The Veteran told an April 2012 VA examiner that he had symptoms of fatigue during the day and felt he was not getting enough sleep; he got a sleep study that showed sleep apnea. The April 2012 VA examiner opined that the Veteran’s sleep apnea was less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner noted that the Veteran’s in-service complaints of fatigue and sleeping problems could not be linked to his currently diagnosed sleep apnea and suggested that they could have been related to another condition since other medical conditions cause sleep problems and fatigue. The examiner also noted that the Veteran’s weight in service was 181 pounds, and that his weight at the time of the April 2012 examination was 250 pounds, which put him at risk for sleep apnea. The February 2017 VA examiner likewise concluded that the Veteran’s sleep apnea was less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner noted the Veteran’s in-service complaints of weight loss, diarrhea, and fatigue. The examiner also noted that the Veteran’s weight change since discharge until his 2012 sleep apnea diagnosis. The examiner noted that almost 40 years had elapsed between discharge and diagnosis, and explained that the two most well-documented risk factors for sleep apnea are increasing weight and age. The examiner further noted that the Veteran’s service treatment records were silent for evidence of apnea, hypersomnolence, or other signs suggestive of sleep apnea. Moreover, the examiner noted that the Veteran’s in-service complaints of fatigue and sleep problems were non-specific and could be due to many conditions. Finally, the examiner indicated that he had reviewed the Veteran’s pulmonary function tests and echocardiogram results of record and was unable to find evidence of cardiopulmonary complications that could be signs of long-term sleep apnea. Given the absence of chronic sleep problems characteristic of sleep apnea during service or evidence of progressive symptoms or imaging results indicative of sleep apnea during the years since service, the examiner ultimately concluded that the Veteran’s currently diagnosed sleep apnea was not caused by or incurred during active service. In the JMR, the parties found that the February 2017 VA examination did not discuss the Veteran’s lay statements on onset and continuity of symptomatology as instructed in a December 2016 Board remand. The Veteran had provided statements of sleep difficulties that began in service and continued to the present. Also, a September 1974 service treatment record documented that the Veteran was suffering from diarrhea and difficulty waking up. Given the JMR finding that the February 2017 VA examiner had essentially failed to consider the Veteran’s statements on onset and symptomatology, the Board will not consider the examiner’s opinion on causality. The Board finds; however, that some of the examiner’s more objective findings that would not be implicated by the Veteran’s lay statements and are still probative. For example, the examiner noted that the two most well documented risk factors for sleep apnea were increasing weight and age and the Veteran’s diagnosis of OSA was made 36 years after his service, and after he had gained 64 pounds. The examiner further determined that the service treatment records were silent for evidence of apnea, hypersomnolence, or other signs suggestive of sleep apnea. Such records were also absent of other signs suggestive of sleep apnea such as hypertension. The February 2017 VA examiner also explained that the Veteran’s in-service complaints of fatigue and sleep problems were non-specific and could be due to many conditions, including illness, poor sleep habits, overwork, and stress. The examiner also found that he had reviewed the Veteran’s pulmonary function tests and echocardiogram results of record and was unable to find evidence of cardiopulmonary complications that could be signs of long-term sleep apnea. The examiner indicated there was no evidence of progressive symptoms over the years or of imaging/complications which could be indicative of long-term sleep apnea. The Veteran received a new examination in January 2020 VA. The Board; however, finds that such VA examination is inadequate as it mischaracterized the service treatment records by not noting the Veteran’s in-service report of difficulty sleeping. Furthermore, as previously noted by the prior Board remand, the VA examiner failed to address the Veteran’s lay statements. As such, the Board will not consider the medical opinion to be probative. The Board will consider the Veteran’s lay report to the VA examiner that the condition began 48 years ago with snoring. He indicated that “everyone told me I snored. I didn’t use to snore but lately people have been it’s loud.” He indicated that he had a sluggish feeling during the day. The examiner noted a diagnosis of OSA and that the Veteran reported feeling less sluggish and tiredness and more energy since using the machine. The Board notes that since the most recent December 2020 VA medical opinion (discussed below), the Veteran’s representative submitted a February 2021written brief statement, which included another link to medical articles. Although such articles were not specifically considered by the VA medical opinion provider, the articles are essentially duplicative of the previous articles provided by the Veteran’s representative in prior written brief statements that showed an association between PTSD and OSA, rather than causation. Similar articles were considered by the VA medical opinion provider. The premise of the articles finding an association was addressed by the December 2020 VA medical opinion provider (further discussed below). The examiner considered other, similar articles submitted by the Veteran’s representative and cited to multiple additional medical articles in support of her formation of her medical opinion, while also addressing the specific history of the Veteran. The articles submitted were general in nature and did not discuss this Veteran’s specific history and circumstances. Thus, the Board finds that a remand to have a VA medical opinion provider consider effectively duplicative articles is not warranted. Consistent with the directions of the JMR and prior Board remand, the December 2020 VA examiner specifically noted consideration of the Veteran’s lay statements of a long history of fatigue and difficulty awakening during service, as well as, trouble with daytime tiredness and constant sleepiness while on active duty. The examiner further specifically noted consideration of the different VA examinations over time, including mentions of a history of loud snoring, and the post-service records showing non-specific symptoms of fatigue. She was unable to find any evidence of medical care for a sleep disorder in service or anytime post service until his complaints of loud snoring that resulted in a sleep study. He was diagnosed with severe OSA on in April 2012, following sleep study, 37 years after separation. The December 2020 VA medical opinion provider found no nexus and that the condition claimed was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness. She explained that sleep apnea is a disease which occurs when obstruction of the upper airways during sleep causes periods of apnea and desaturation of oxygen. The most well-documented risk factors are increasing age and increasing weight, and male gender. This Veteran weighed 186 lbs at separation in February 1975 and 250 lbs at time of diagnosis of OSA, at age 60. Also, as to the Veteran’s report of snoring, she noted that a JAMA article (which is a meta-analysis from 1966-2013) shows a history of “snoring” is not useful in establishing a diagnosis of OSA. It found that even though snoring is common in sleep apnea patients, it was not useful for establishing the diagnosis, and that “...snoring on its own is common and does not discriminate between those with and without OSA” and “[l]ikewise, self-reported sleepiness and morning headaches do not help discriminate among patients with and without apnea.” The December 2020 VA medical opinion provider is also the only one to provide an opinion as to whether OSA was caused or aggravated by the Veteran’s service-connected PTSD. She noted review of the evidence based medical literature and prior written brief presentation, with the contention that “almost 60% of young veterans with PTSD also have OSA.” She explained that while there does appear to be an association between PTSD and sleep apnea, such an association does not indicate causation. She noted that the medical literature suggests that individuals with PTSD have higher rates of OSA than the general population; however, not all studies found a higher prevalence of OSA in PTSD. She noted that one study of veterans with PSTD published in 2011 concluded: “Our results indicate that PTSD is not necessarily associated with a higher prevalence of OSA. However, PTSD severity was related to OSA, which may possibly mean that comorbid OSA leads to an increase in PTSD complaints. However, future research should indicate whether OSA exerts a negative influence on PTSD, and treatment of OSA alleviates PTSD symptoms” Also, she noted, the issue of the impact of OSA and its treatment on PTSD was addressed in a study published in 2017 that found that for every 10% increment in CPAP therapy adherence, there was a reduction of one nightmare on average per week, indicating that treatment of OSA can alleviate PTSD symptoms. “The pathophysiologic mechanism behind the association of OSA and PTSD” is based on “poor sleep architecture hindering the restorative qualities of sleep.” Disruption of “REM sleep and slow-wave sleep because of frequent OSA-related arousals is detrimental to PTSD recovery because both REM and slow-wave sleep stages are particularly important for memory consolidation of emotional experiences.” In summary, the examiner found that there is likely an association between OSA and PTSD, and there is evidence that OSA can unmask or aggravate PTSD. However, there is no evidence that PTSD causes or aggravates OSA. Thus, she opined that it is less likely than not that the Veteran’s OSA was caused or aggravated by his PTSD. The examiner’s opinion is probative, because it is 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). The Veteran is competent to report that he was told he snored and felt tired or had sleep issues; however, as explained by the December 2020 VA medical opinion provider, such symptoms are not the same as a diagnosis of OSA. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, a diagnosis of OSA, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). “Competent medical evidence” is evidence that is provided by a person qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a). The Board further notes that the VA medical opinion providers have consistently found that the most well documented risk factors for sleep apnea were increasing weight and age, including the most probative December 2020 VA medical opinion. There was no indication of such risk factors at the time of the Veteran’s service to explain a sudden development of OSA, though such risk factors did develop after service. Rather, per the September 1974 service treatment record, the Veteran had lost 25 pounds in the past 6 months. The February 2017 VA examiner further determined that the service treatment records were silent for evidence of apnea, hypersomnolence, or other signs suggestive of sleep apnea. Such records were also absent of other signs suggestive of sleep apnea such as hypertension. He also had reviewed the Veteran’s pulmonary function tests and echocardiogram results of record and was unable to find evidence of cardiopulmonary complications that could be signs of long-term sleep apnea, and found no evidence of progressive symptoms over the years or of imaging/complications which could be indicative of long term sleep apnea. The February 2020 VA medical opinion provider similarly opined that OSA was less likely than not incurred in or caused by service. As to the contention that OSA was caused or aggravated by PTSD, the Board similarly notes that the December 2020 VA medical opinion is the only competent medical opinion evidence of record to address that claim and found neither causation nor aggravation by PTSD. Further, as documented in his treatment records, his OSA symptoms improved with his CPAP compliance. This tends to show his OSA symptoms were not aggravated during the appeal period. The probative VA medical opinions of record are uncontroverted by any other medical opinion evidence of record, apart the Veteran’s own implied assertions. See Black v. Brown, 10 Vet. App. 279, 284 (1997) (in determining the weight assigned to this evidence, the Board looks at factors such as the health care provider’s knowledge and skill in analyzing the medical data). Further, absent such countervailing medical evidence, the Board itself is prohibited from exercising its own independent judgment in the Veteran’s favor. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board may not exercise its own independent judgment to resolve medical questions). Additionally, although the representative has included citations to medical treatise, the Court of Appeals for Veterans Claims has held that, in general, information contained within medical articles and treatise evidence is too abstract to prove the nexus element of a service-connection claim. Such evidence can provide important support when combined with an opinion of a medical professional and may provide sufficient evidence of a causal connection when it discusses generic relationships with a degree of certainty so that the causal connection is based upon objective facts rather than on an unsubstantiated lay medical opinion. Sacks v. West, 11 Vet. App. 314 (1998). The Board further notes that the December 2020 VA medical opinion provider explained that a showing of association, as indicated in the medical treatise evidence, is not the same of a showing of causation. Such a determination is similar to the Court’s requirement of sufficient evidence of a causal connection. The VA medical opinion provider further explained that not all studies suggest that individuals with PTSD have higher rates of OSA than the general population as implied by the Veteran’s representative. The Board’s own review of the medical treatise evidence referenced by the Veteran have generally indicated studies finding association, but did not provide findings of causation. The Board thus finds that the medical treatise evidence does not diminish the probative value of the VA medical opinion and that it does not render the opinion inadequate. Given that the December 2020 VA medical opinion provider also provided a medical opinion specifically tailored to the Veteran, the Board finds such medical opinion to be more probative than the general medical treatise evidence provided by the Veteran. Although the Veteran and his representative believes that the Veteran’s OSA began in service or is related to PTSD, the Board reiterates that the preponderance of the most probative medical evidence weighs against findings of in-service development and causation or aggravation by PTSD. As the preponderance of the most probative evidence of record is against the claim, the benefit of the doubt rule does not apply. Service connection for OSA, to include as secondary to service-connected PTSD, is denied. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Lindio 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.