Citation Nr: 21020800 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 16-61 524 DATE: April 8, 2021 ORDER Entitlement to service connection for sleep apnea, to include as secondary to posttraumatic stress disorder (PTSD), is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s sleep apnea began during active service or is otherwise related to an in-service injury or disease. 2. The Veteran’s sleep apnea is not secondary to service-connected posttraumatic stress disorder and is not otherwise related to an in-service injury or disease. CONCLUSION OF LAW 1. The criteria for service connection for sleep apnea due to service or service-connected posttraumatic stress disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the United States Army from December 1981 to April 1983 and from August 1983 to February 1998. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a September 2015 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to service connection for sleep apnea, to include as secondary to posttraumatic stress disorder (PTSD), is denied. Service connection will be granted if the evidence in the record demonstrates that a current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) an in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). The Veteran has also alleged that his sleep apnea is due to or aggravated by his service-connected PTSD. Secondary service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence of (1) a current chronic disability for which service connection is sought; (2) an already service-connected disability; and (3) that the disability for which service connection is sought was either caused or aggravated by the already service-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). Certain chronic diseases are subject to presumptive service connection if they manifest to a compensable degree within one year from separation from service, even if there is no evidence of the disease during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Additionally, such chronic diseases may use the alternative method of continuity of symptomatology to establish the second and third Saunders elements if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a); see 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For chronic diseases listed under 38 C.F.R. § 3.309(a), nexus to service may be established by showing continuity of symptomatology. Walker, 708 F.3d at 1338-40. The Veteran’s service treatment records are silent with respect to a diagnosis for sleep apnea, as well as for any symptoms of sleep apnea or other sleep-related issues. His VA treatment records show the Veteran was first diagnosed with sleep apnea in May 2014. The Veteran has a current diagnosis of sleep apnea; therefore, the first element of service connection has been met. Sleep apnea is not a “chronic disease” listed under 38 C.F.R. § 3.309(a). Therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303(b) do not apply. Walker, 708 F.3d 1131. However, the Board will evaluate whether direct service connection or service connection secondary to PTSD are warranted. In this case, the Veteran’s service treatment records do not reflect any complaints or treatment related to sleep apnea during service. Indeed, the post-service treatment records do not reflect diagnosis of sleep apnea until May 2014. Such weighs against direct service connection. Further, there is no competent, medical evidence regarding a nexus between the Veteran’s active service and his current sleep apnea. Regarding secondary service connection, the Board notes that the Veteran is service-connected for PTSD. However, the weight of the competent evidence fails to establish a relationship between the Veteran’s current sleep apnea and his service-connected PTSD. In this regard, the Board places significant probative value on the opinions of the September 2019 VA examiner, as discussed in detail below, who performed a detailed review of the Veteran’s service and medical treatment records and provided a sound rationale for the conclusions reached. The Veteran submitted a private medical opinion from Dr. H.J. in November 2015. Dr. H.J. opined the Veteran’s sleep apnea was at least as likely as not aggravated by his PTSD. Dr. H.J. referenced the article “Association of Psychiatric Disorders and Sleep Apnea in a Large Cohort” published in SLEEP, Vol. 28, No. 11, 1405-11 (2005) (SLEEP article), stating that the study in the article concluded PTSD might exacerbate sleep apnea symptoms because of the additional REM sleep cycles those with PTSD experience, which is when the muscles of the upper airway are most relaxed. Thus, Dr. H.J. opined, the study supports the theory that the Veteran’s PTSD aggravates his sleep apnea. The Veteran was afforded a VA examination in September 2019. The examiner noted the Veteran had a sleep study done in May 2014 that was consistent with obstructive sleep apnea and indicated sleep-related hypoxemia/hypoventilation. Other pertinent medical conditions noted were morbid obesity and hypertension. The examiner opined the Veteran’s sleep apnea was less likely than not caused by his service because there is no evidence sleep apnea had its onset during service nor is related to an in-service injury or event. Additionally, the Veteran was not diagnosed until 16 years after separation from service. The examiner also opined the Veteran’s sleep apnea was less likely than not caused or aggravated by his PTSD. The examiner stated the most common cause of obstructive sleep apnea in adults is excess weight and obesity, which is associated with an increase of fat deposits in the neck and soft tissue in the mouth, which constricts the airway as the muscles relax during sleep. The examiner noted the Veteran is morbidly obese and has been since at least 2007, and she opined the Veteran’s sleep apnea was more likely than not caused by his obesity. The examiner also addressed the SLEEP article submitted by Dr. H.J. about a connection between PTSD and sleep apnea, finding that the study indicated a possible association between sleep apnea and psychiatric disorders but did not establish causation. She noted that while sleep apnea could possibly contribute to the development or aggravation of psychiatric disorders, it would not necessarily be the result of these disorders. Because there is no establishment of causation, but merely an association between sleep apnea and psychiatric disorders, the examiner opined that this literature does not establish a nexus between the Veteran’s sleep apnea and his PTSD. Additionally, the examiner opined it is less likely than not the Veteran’s PTSD aggravates his sleep apnea. While there may be an association between an increase of REM sleep in those with PTSD, which is the time where the muscles are most relaxed in the upper airway, this has not been established to a degree of 50 percent probability or greater in the medical literature. Furthermore, the examiner pointed out that the Veteran’s morbid obesity is more likely than not the significant contributor to his sleep apnea, as supported by medical literature. The Board finds the September 2019 VA examiner’s opinion to be of greater probative weight than Dr. H.J.’s November 2015 private opinion. While Dr. H.J. provided the SLEEP article that found there may be an association between PTSD and sleep apnea, the study did not establish any causation or aggravation with a degree certainty of at least 50 percent. The study goes on to note that although its results show a potential association between psychiatric conditions and sleep apnea, due to the nature of the study, they cannot determine any possible cause and effect between the two, and therefore further research is needed. Thus, while the SLEEP article shows an association between sleep apnea and PTSD, it is not demonstrated with enough certainty to support Dr. H.J.’s statement that the Veteran’s sleep apnea is at least as likely as not aggravated by his PTSD. The September 2019 examiner reviewed and addressed the SLEEP article and noted that the study’s results only indicated a possible association between PTSD and sleep apnea, but the current medical literature could not determine an association with at least 50 percent certainty. Therefore, the Board finds the September 2019 examiner’s opinion to be more probative than Dr. H.J.’s private opinion. (continued on next page) For the reasons set forth above, the Board concludes that the preponderance of the evidence is against finding the Veteran’s sleep apnea is related to his service or proximately due to or aggravated by his service-connected PTSD. Accordingly, service connection for sleep apnea is denied. 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. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Caroline B. Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Gabrielle Ongies, 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.