Citation Nr: 21020735 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 16-08 184 DATE: April 8, 2021 ORDER Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected chronic obstructive pulmonary disease (COPD) and/or right atrial and ventricular enlargement, is denied. FINDING OF FACT The Veteran’s obstructive sleep apnea was not incurred in service or the result of service, to include any exposure to asbestos or lead paint, and was not proximately caused or aggravated by service-connected COPD and/or right atrial and ventricular enlargement. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea, to include as secondary to service-connected COPD and/or right atrial and ventricular enlargement, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1983 to December 2003. This matter is before the Board of Veterans’ Appeals (Board) on appeal of an April 2013 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The claim was remanded by the Board for additional development in December 2018. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a claimant must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection also may be established on a secondary basis for disability that is proximately due to, or the result of, or aggravated by a service-connected disability. Establishing secondary service connection requires evidence of: (1) a current disability (for which secondary service connection is sought); (2) an already service-connected disability; and (3) indication the current disability was either (a) caused or (b) is being aggravated by the service-connected disability. See 38 C.F.R. § 3.310(a) and (b); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Board must fully consider the lay evidence of record. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to report on the onset of disability and, when applicable, continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra. 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. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for obstructive sleep apnea is denied. The Veteran contends that his obstructive sleep apnea was incurred service. Alternatively, the Veteran asserts obstructive sleep apnea is secondary to service-connected COPD or right atrial and ventricular enlargement or that it was due to exposure to lead-based paint and/or asbestos while serving as a Damage Control Officer aboard the U.S.S. Dwight D. Eisenhower (CVN-69). Service treatment records include an August 1999 medical history report in which a remote history of sleep apnea by history and positive history of snoring were reported. However, the Veteran specifically denied frequent trouble sleeping. The August 1999 examination report was negative for abnormalities other than musculoskeletal. In an October 2003 retirement medical history report, the Veteran again denied frequent trouble sleeping. The October 2003 examination report was negative for abnormalities. In a December 2003 post-deployment health assessment, the Veteran denied still feeling tired after sleeping. Post-service private treatment records include an evaluation in September 2008 in which the Veteran reported he snores loudly and may stop breathing in his sleep. He also complained of difficulty sleeping and fatigue. The Veteran underwent a sleep study in October 2008. The provider noted that the Veteran was seen for evaluation of loud, disruptive snoring, anecdotal apneas, and daytime sleepiness. The provider noted there were no scorable respiratory abnormalities during sleep, that there was a total of five snore arousals noted and his oxygen saturation remained above 90 percent. The diagnosis was primary snoring. In an August 2011 sleep study report, the Veteran reported a long history of daytime sleepiness. The diagnosis was obstructive sleep apnea. In a March 2012 statement, the Veteran’s wife stated that she has been married to the Veteran for 25 years. For the last 10 to 15 years, she has told him that he stops breathing at night for short periods of time then he gasps for breath and begins breathing again. She stated his snoring became so loud that she could no longer sleep in the same room as the Veteran. She stated he has become very irritable and grouchy. Since he has started his continuous positive airway pressure (CPAP) machine, she believes he has been slowly getting better. In a March 2012 statement, the Veteran asserted that he began complaining of choking in his sleep, snoring, and not having a restful sleep prior to 1999. He wrote that his condition had worsened over the years, that his 2008 sleep study was inconclusive as he did not sleep during the study except fitfully and that a 2011 sleep study was done based on the recommendation of his cardiologist. The Veteran wrote that he was placed on a CPAP machine at that time, that he has been extremely tired and would fall asleep when sitting for a long time. He asserted he now has memory issues which the doctors have indicated is caused by his sleep apnea. He also reported irritability, mood swings, and depression. In a December 2015 VA heart examination, the examiner reported sleep apnea is an “other pertinent physical findings, complications, conditions, signs or symptoms” related to myocardial infarction coronary artery disease. In a February 2016 substantive appeal, the Veteran asserted sleep apnea was incurred in service and that he was exposed to lead-based paint and asbestos as the Damage Control Officer on the U.S.S. Dwight D. Eisenhower for many years. He stated that his symptoms manifested during that time. He also asserted his first obstructive sleep apnea test was not accurate as he did not really sleep during the test. He waited for the second test because he weas dealing with a lot of medical issues. The Veteran stated he made constant complaints about his sleep issues but was told to get breathing strips for his nose. A July 2020 VA examiner opined that the etiology of the Veteran’s current obstructive sleep apnea is more likely than not related the obstruction in the upper airways due to adipose tissue which correlates to the weight gain that has progressed as documented in the clinical records. The examiner explained that obstructive sleep apnea is by definition caused by an anatomic obstruction or collapse of the upper airways during sleep, the anatomic obstruction described in medical literature is associated with obesity, obstruction of the nasal or oropharyngeal passages by adipose tissue, anatomic positioning resulting in obstruction, swelling or hypertrophy of the upper airway anatomy and that the obstruction causing the sleep apnea is treated by the positive pressure opening the airways enabling the Veteran to breathe without interruption while asleep. The examiner noted that the most common contributing factor to the Veteran's obstructive sleep apnea was excessive weight, as his weight increased from 221 pounds at service discharge to 250 pounds at the time of the polysomnogram in 2011. The July 2020 VA examiner further opined that the Veteran's obstructive sleep apnea was less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event or illness, to include exposure to asbestos or lead pain while aboard the U.S.S. Dwight D. Eisenhower during service. The examiner reasoned that exposure to asbestos in high concentration and for a long time will lead to lung diseases such as lung cancer and asbestosis and will not cause obstructive sleep apnea as obstructive sleep apnea is an upper airway obstruction condition whereas lung disease from asbestos exposure or COPD are lower airways and lung tissue disease. The examiner further reasoned that exposure to high concentrations of Volatile organic compounds (VOCs) for extended periods can cause long-term damage to certain systems of the body to include the nervous system, liver and kidney but does not cause or lead to a lung disease or obstructive sleep apnea. The July 2020 VA examiner further noted that the Veteran was diagnosed with obstructive sleep apnea in 2001 which is eight years after service, COPD does not cause obstructive sleep apnea and is not a risk factor for developing obstructive sleep apnea, that the symptoms of COPD are mostly shortness of breath, that the symptoms of obstructive sleep apnea are snoring, apnea during sleep, daytime sleepiness and fatigue and that they are considered two separate conditions and are not related to each other. The examiner opined that COPD or a heart condition did not interfere with or worsen obstructive sleep apnea symptoms and that it was less than likely than not that the Veteran's obstructive sleep apnea has been aggravated beyond the natural progression by his service-connected conditions to include COPD and a heart condition. The July 2020 VA opinion is deemed adequate for adjudicative purposes. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007) (an adequate medical examination must provide a rationale and explanation for its conclusions). The examiner considered all evidence of record after thorough review of the claims file, including lay statements properly weighed. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2009); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion…must support its conclusion with an analysis the Board can consider and weight against contrary opinion”). The examiner acknowledged the Veteran’s contentions and gave an explanation as to why his etiological theories cannot be supported by current medical findings. Furthermore, the medical examination report contained clear conclusions with supporting data and a thorough rationale. See Nieves-Rodriguez v. Peake, supra. Therefore, this medical opinion is of great probative value. There is no contrary opinion of record. The Board notes that the December 2015 VA heart examiner reported sleep apnea is an “other pertinent physical findings, complications, conditions, signs or symptoms” related to myocardial infarction coronary artery disease. However, the examiner provided no rationale for the opinion and therefore, the opinion is provided little, if any, probative weight. Id. In addition, the Board notes that etiology opinions were also obtained in February 2013 and May 2015. However, the Board previously found these opinions to be inadequate in its December 2018 remand. These opinions are therefore afforded little, if any, probative weight. The Board acknowledges the lay evidence; specifically, the Veteran’s wife statement that she has been a witness to the Veteran’s snoring and breathing over the last 10 to 15 years. While she is competent to attest to what she sees and hears, she is not competent to state the cause of his symptoms or diagnosis as there is no evidence of record that she has the requisite specialized medical knowledge. Likewise, although the Veteran asserts that his obstructive sleep apnea is related to service or service-connected COPD and heart disabilities, he is not competent to provide a medical opinion linking his disability to service or service-connected disability. Opinions regarding the etiology of obstructive sleep apnea are complex and generally beyond the competency of a lay witness. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Based on the evidence, the Board finds that service connection for obstructive sleep apnea is not warranted. The Board finds that the weight of the evidence shows that service connection for obstructive sleep apnea during active service is not warranted, and the claim must be denied. As the preponderance of evidence is against the claim, the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. M. Donahue Boushehri, 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.