Citation Nr: 21021767 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 13-21 966A DATE: April 13, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) to include as secondary to post traumatic stress syndrome (PTSD) is denied. FINDING OF FACT The preponderance of the evidence of record is against a finding that the Veteran’s sleep apnea, diagnosed as obstructive sleep apnea after a sleep study, incurred in service or is etiologically related to active duty service or is secondary to service-connected PTSD. CONCLUSION OF LAW The criteria for service connection for OSA are not met. 38 U.S.C. §§ 1110, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active service with the United States Navy from August 1990 to November 1993. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board has remanded the Veteran’s claim for OSA in September 2015, September 2017, January 2019, and October 2020. The Veteran was afforded new VA opinions, the most recent being in December 2020. Additionally, the Veteran has a duty to assist and cooperate with VA in developing evidence – the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). The Board finds that the foregoing reflects substantial compliance with the October 2020 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Thus, the Board will adjudicate the claim currently on appeal. Generally, service connection will be granted for a disability resulting from an injury or disease caused or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). A grant for service connection for a disability requires: (1) a present disability or persistent or recurrent symptoms of a disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (“nexus”) between the present disability and the in-service event, injury, or disease. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including the evidence pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, service connection may be granted for specified chronic diseases when shown in service with subsequent manifestations at a later date, however remote, unless clearly attributable to intercurrent causes. 38 C.F.R. §§ 3.303(b), 3.307. Some chronic diseases are subject to presumptive service connection, although, not otherwise established as incurred or aggravated by service if manifest to a compensable degree, within an applicable time limit, provided that the rebuttable presumptive provisions of § 3.307 are also satisfied. See also 38 C.F.R. §§ 3.303, 3.309. Alternatively, to show a chronic disease in service, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). A disability, with no causal relationship (“nexus”) to an in-service event can be considered service-connected by being proximately due to or aggravated by a service-connected disease or injury. 38 § C.F.R §3.310(a)-(b). To establish secondary service connection there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) competent evidence establishing a link (“nexus”) between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board notes that a non-service-connected disability proximally caused by a service-connected disability is considered part of the original condition. See 38 § C.F.R §3.310(a). A disability which is aggravated by a service-connected disease or injury, is compensated to the degree of the increase of severity. See 38 C.F.R. § 3.310(b); and see Allen v. Brown, 7 Vet. App. 439 (1995). Lay evidence is competent to establish the presence of observable symptomatology and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition is capable of lay observation and may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature.” Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be 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 v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue.”). Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In this case, the Board has reviewed all the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. The Veteran contends that his sleep apnea is secondary to PTSD. He also contends that he has had symptoms related to sleep apnea since service. In this case, the Veteran has a current disability. He was diagnosed with obstructive sleep apnea (OSA) after a sleep study in March 2011. See CAPRI received May 2013. He has had treatment with a CPAP for OSA. For example, in April 2011, the Veteran had an appointment at the VA to perform a CPAP titration study. Id. The Board has considered whether the Veteran’s OSA was incurred in service. The Veteran contended that sleep issues or symptoms began while he was in active service. The Board considered the statements provided by the Veteran that he had symptoms during service; however, the Board does not find that this generalized statement supports an in-service incurrence of the specific condition the Veteran has, which is OSA. The evidence also does not show that the Veteran’s OSA manifested to a degree of 10 percent within one year from active service or that the Veteran had a continuity of symptoms since service. The Veteran was not diagnosed with sleep apnea until 2011. See CAPRI received May 2013. He had a CPAP trial in April 2011 at the VA. He was also told to attempt to sleep on his side. See CAPRI received March 2016. The Veteran has had some routine follow up. In July 2014 and October 2014, the Veteran had follow-up consultations for obstructive sleep apnea. Id. The Board recognizes that the Veteran might sincerely believe that his current OSA condition began in service. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on his symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although the Veteran is competent to report his symptoms, he does not possess the medical expertise required to provide a competent opinion concerning the etiology of the disability at issue. The Board also noted that the Veteran only provided very generalized statements that he has sleep issues before he was diagnosed. The Board also considered the wife’s lay statements. See Buddy / Lay Statement received May 2016. She stated that she met the Veteran in 1992, while he was in the Navy. At that time, she thought that the Veteran was overweight. She stated that when he was discharged from service in 1993, she started dating the Veteran. The Veteran’s wife reported that he snored very badly and gasped for breath while sleeping. She also reported that he had fluctuations of his mood. Id. The Veteran’s wife did not provide a very specific explanation of when the Veteran started to snore or gasp for breath. The wife also did not report symptoms occurring during service. The Veteran’s wife does not possess the medical expertise required to provide a competent opinion concerning the etiology of the disability at issue and she provided generalized statements about sleep issues like snoring. Overall, the Board placed more weight on the medical opinions discussed below than on the lay statements. The Veteran was not diagnosed with OSA or treated for OSA, until well after his active military service ended. Therefore, the Veteran’s OSA did not occur in service and was not shown within one year or by a continuity of symptoms. Next, the Board considered direct service-connection, but the evidence does not show a causal relationship (“nexus”) between the Veteran’s OSA and an in-service event, injury, or disease. As discussed above, the Veteran has a current disability, OSA and the Veteran reported an in-service event. The Veteran reported that he had sleep apnea due to weight gain and due to a swollen uvula. However, even if the Veteran had an in-service event, as he describes, the evidence does not sufficiently show a causal relationship (“nexus”) between the present disability and the in-service event, injury, or disease. In April 2016, the VA provider opined that the Veteran’s OSA was less likely than not (less than 50% probability) incurred in or caused by the claimed in service injury, event, or illness. See C&P Exam received April 2016. The VA provider reported that the Veteran weighed 320 pounds in April 2011. The provider explained that sleep apnea occurs when soft tissues and muscles in the oral cavity relax during sleep and block airways. The provider opined that the Veteran’s sleep apnea was caused by his obesity, and the Veteran’s increase in weight over time. Id. Then in November 2017, the same VA provider gave an addendum opinion. See C&P Exam received November 2017. The provider opined that the Veteran’s condition was less likely than not (less than 50% probability) incurred in or caused by the claimed in service injury, events or illness. The provider noted that in March 2011 the Veteran had clinically significant sleep apnea with an overall AHI (apnea -hypopnea index) of 10 events per hour. An AHI of 5 to 15 events per hour is classified as mild OSA. The provider stated that symptoms such as snoring, gasping for breath or daytime sleepiness and signs of obesity may indicate possible OSA; however, these symptoms cannot be used to diagnose OSA. Id. In October 2019, another VA provider opined that the Veteran’s OSA was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in service injury, event, or illness. The provider noted that the Veteran was not diagnosed with OSA until 2006. The Veteran had been using a CPAP with good results. The examiner noted that there was no objective evidence that the Veteran had sleep apnea in service and that from 2011 to 2014 it appeared that his AHI had improved significantly. See C&P Exam received October 2019. Considering the above, the Board finds that the evidence is against a finding that the Veteran’s current OSA is directly related to service. There is no opinion to support any direct link between the Veteran’s OSA with service. Lastly, the Board considered secondary service-connection, but the evidence does not show competent evidence establishing a link (“nexus”) between the service-connected disability, PTSD, and the current disability. In December 2020, a VA provider opined that the claimed condition, OSA, was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service-connected condition. The provider explained that PTSD and related psychological comorbidities and the medication used to treat them do not cause and do not aggravate OSA. See C&P Exam received December 2020. The provider explained that PTSD and related comorbidities are associated with sleep disturbances such as insomnia, easy awakening, and daytime somnolence. Those conditions represent independent, unrelated conditions, or symptoms. Symptoms related to PTSD (insomnia, easy awakening, and daytime somnolence) do not impact on the mechanism of OSA, either to cause it or aggravate it. The provider explained that OSA is due to upper airway obstructions associated with apneic episodes. As such, there is no way PTSD can impact on OSA. The provider opined that it is less likely than not that the Veteran’s OSA has been aggravated beyond its natural course due to any cause. The provider also noted that the evidence appeared to show relative improvement of OSA with treatment and over time. Id. As discussed above, the evidence does not show a link between the Veteran’s service-connected PTSD and obstructive sleep apnea. The Board notes that a thorough review of the records and an assessment of the opinions weighs against the Veteran’s claim that his OSA condition is directly connected to service or secondarily connected to a service-connected disability. The Board finds that VA had satisfied its duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); and see Wood v. Derwinski, 1 Vet. App. 190 (1991) (the duty to assist is not a one-way street). Based on the foregoing, the claim of entitlement to service connection for OSA, is denied. The preponderance of the evidence is against the Veteran’s claim; thus, the benefit-of-the-doubt rule is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Associate Counsel, C. Parnell 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.