Citation Nr: 21021476 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 16-19 437 DATE: April 13, 2021 ORDER Service connection for obstructive sleep apnea is denied. REMANDED Service connection for bilateral hearing loss is remanded. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s obstructive sleep apnea was caused by or incurred in service, or caused or aggravated beyond its natural progression by a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for obstructive sleep apnea are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1976 to July 1982 and from September 1990 to April 1991, with additional service in the Reserves. This matter was previously before the Board in January 2019. The Veteran submitted additional relevant evidence after the issuance of a February 2021 Supplemental Statement of the Case (SSOC). Since the Veteran perfected his appeal after February 2013, waiver of initial agency of original jurisdiction (AOJ) consideration of new evidence is not required with respect to evidence submitted by him or his representative. See Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7015(e)(1)). Thus, the Board has considered this evidence in the first instance. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. 1. Obstructive Sleep Apnea The Veteran has set forth multiple contentions as to the onset of his sleep apnea. He has indicated that he has suffered from the condition since 1976, when he was advised by his shipmates that he constantly quit breathing while he slept. See April 2016 VA Form 9. He has alternatively suggested that he first became aware of his sleep issues while deployed to Saudi Arabia in 1990, when he would wake up in the night, sweaty, disoriented, and with feelings of claustrophobia. He says that a fellow serviceman and his wife noticed that he woke up gasping for air and snoring. See September 2019 VA examination. Finally, he indicated in June 2020 that he believed his sleep apnea was potentially related to his service-connected posttraumatic stress disorder (PTSD). See June 2020 Correspondence. It is not in dispute that the Veteran has a diagnosis of obstructive sleep apnea, diagnosed in September 2014 by sleep study. Thus, the question is whether the currently diagnosed sleep apnea was caused by or incurred in service, or by service-connected PTSD. The Veteran underwent a VA examination in September 2019. As noted above, he told the examiner that he first became aware of his sleep issues while deployed to Saudi Arabia in 1990. In a medical opinion, the examining clinician opined that sleep apnea was less likely than not incurred in or caused by any event in service. The examiner reasoned that in-service and post-service records did not support a nexus of the condition to service. Additional opinions were obtained. In January 2021, a different VA examiner acknowledged the Veteran’s assertions that he had suffered from sleep apnea symptoms since 1976 during service, reporting symptoms of waking up with sore throat, headache, and weakness. However, the examiner noted that a review of the service treatment records did not contain complaints, diagnoses, or treatment for sleep apnea. Moreover, medical records dated from 1983 through 2013 were silent for any complaints of sleeping issues, and it was not until 2014 that a sleep study was conducted. The examiner noted that the Veteran was found to have a body mass index (BMI) of 29 at the time of his sleep study, which was classified as borderline obese, and that obesity had a direct causal relationship with apnea. Regarding a theory of secondary service connection, a September 2020 VA examiner opined that sleep apnea was less likely than not proximately due to or the result of the Veteran’s service-connected PTSD. The rationale was that sleep apnea onset was in 2014, prior to the diagnosis of the Veteran’s PTSD in 2015. Moreover, the examiner cited studies completed by the National Institute of Health (NIH), which showed a coexisting relationship between sleep apnea and PTSD, but did not establish causation. Indeed, the examiner noted that more research was needed to determine if the conditions had a causative relationship. In another January 2021 opinion, a different examiner opined that sleep apnea was not aggravated by the Veteran’s PTSD, insofar as the Veteran’s sleep apnea was stable and controlled, and a review of the medical evidence showed that the Veteran’s mental health records did not contain notations of snoring or witnessed apneas; rather, the examiner stated that the Veteran had reported improved sleep despite depressed moods. Thus, the examiner concluded, sleep apnea was not aggravated beyond its natural progression by service-connected PTSD. The Board finds that taken together, the VA opinions are highly probative, insofar as they considered the Veteran’s service and post-service medical records, as well as the Veteran’s lay statements as to the onset and progression of his sleep apnea, ultimately concluding that the medical evidence did not support a finding that the Veteran’s sleep apnea was due either to service, or to his service-connected PTSD, based on findings that the Veteran’s sleep apnea was more likely caused by his body habitus and that NIH studies did not support a causative relationship between PTSD and sleep apnea. The opinions, when read together, contain clear conclusions and supporting data and applied medical principles to the specific facts of the Veteran’s particular circumstances and individual medical history. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran submitted a private opinion dated in February 2021, showing that the Veteran had sleep disturbances, and that they appeared to be related to his PTSD. The therapist further opined that the physical apparatus meant to aid the Veteran with his sleep apnea frequently reminded him of specific traumatic incidents resulting in paroxysmal anxiety. As no rationale was provided, the Board accords this opinion less probative value than the VA examiners’ opinions. To the extent the Veteran has asserted that his sleeping problems began during his active service and continued through the present, the Board notes that service treatment records, both during active and Reserve service, do not show any complaints of, or treatment for, any sleeping issues. On his May 1982 separation from active duty report of medical history, the Veteran answered “no” to the question of whether he experienced frequent trouble sleeping. He similarly did not endorse any sleeping trouble on his June 1991 separation report of medical history. Notably, his service records from the Reserves also reflect that he did not experience any trouble sleeping; he indicated as much on reports of medical history in April 1987, February 1993, February 1998, and August 2001. On his February 1998 periodic examination report, he wrote that his health was excellent. The Board places greater probative weight on what the Veteran reported during service than his recollection of symptoms after service. See Curry v. Brown, 7 Vet. App. 59, 68 (1994). Indeed, there is absolutely no medical evidence in the record showing treatment for any sleep issues until the Veteran filed a claim for benefits in 2014. For all these reasons, the Board concludes that the preponderance of the evidence is against the claim of service connection for sleep apnea, both on a direct and a secondary basis. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND VA obtained a medical opinion in October 2019 regarding the etiology of the Veteran’s diagnosed bilateral hearing loss. The examiner opined that hearing loss was less likely as not related to service based, in part, on a finding that the Veteran’s military occupational specialty (MOS) in service of storekeeper carried a low probability for exposure to hazardous noise. It does not appear that the examiner considered or addressed the fact that the Veteran was deployed for a short period to Saudi Arabia during Operation Desert Storm, where he has stated that he was subjected to a SCUD missile attack and other hazardous noise. See February 2015 VA PTSD examination report; DD Form 214. Notably, the basis for the Veteran’s award of service connection for PTSD was his verified service in an area of hostile military or terrorist activity. While the examiner considered audiograms during that period of service, the examiner did not discuss the Veteran’s exposure to combat noise. Also, the examiner indicated that the Veteran’s hearing loss was likely due to “other factors,” but did not expound upon that conclusion. The matter is REMANDED for the following action: 1. Return the claims file to the examiner who conducted the October 2019 VA examination, or if unavailable, another examiner with similar expertise. The examiner is asked to review the entire claims file, and then respond to the following: (a.) Is the Veteran’s bilateral hearing loss at least as likely as not (50 percent or greater probability) caused by, or related to, the Veteran’s periods of active service (July 1976 to July 1982 and September 1990 to April 1991)? (b.) The examiner must consider the Veteran’s reports of hazardous noise exposure in the context of being exposed to boiler room noise while working as a storekeeper in the Navy; reports of firing weapons without adequate hearing protection; and his reports of being adjacent to a SCUD missile attack while serving in a combat zone in Saudi Arabia in 1990-1991. (Continued on the next page)   (c.) If relying on the Institute of Medicine (IOM) study (as was done in the October 2019 examination report), the examiner must explain how the qualifying and contradictory statements in the IOM report impact the examiner’s etiology opinion. Reliance solely on the IOM study regarding delayed-onset hearing loss is not an adequate rationale. 2. Thereafter, readjudicate the appeal. If the benefit sought remains denied, issue the Veteran and his agent a supplemental statement of the case. L. BARSTOW Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Polly Johnson, 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.