Citation Nr: 21022088 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 11-18 301 DATE: April 14, 2021 ORDER Service connection for obstructive sleep apnea (OSA), to include as secondary to the service-connected major depressive disorder with anxiety (psychiatric disability), is denied. FINDING OF FACT 1. No respiratory injury or disease or sleep apnea symptoms were manifested during service. 2. Sleep apnea was manifested many years after service and is not causally or etiologically related to service. 3. Sleep apnea was neither caused nor worsened beyond the natural progression by service-connected psychiatric disability. CONCLUSION OF LAW The criteria for service connection for sleep apnea, including as secondary to the service-connected psychiatric disability, are not met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant, had active service from September 1973 to August 1979. This matter is on appeal from a July 2010 rating decision. In July 2018, the Board granted service connection for major depressive disorder with anxiety and remanded the issue of service connection for OSA for a medical opinion addressing whether OSA was either caused or aggravated by the newly service-connected psychiatric disability. Because the November 2020 VA addendum report adequately addresses the question of whether OSA was either caused or aggravated by the service-connected psychiatric disability, the Board finds that there was compliance with the prior remand directives. The Board finds that the duties to notify and assist the Veteran in this case have been satisfied. Neither the Veteran nor the evidence has raised any specific contentions regarding the duties to notify or assist. Service Connection Legal Authority Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established on a direct basis when there is competent, credible evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. 38 C.F.R. § 3.303(a),(d). Service connection may be established on a presumptive basis for chronic diseases listed under 38 C.F.R. § 3.309(a) if chronic symptoms of the disease were shown in service; the disease was manifested to a compensable degree within a presumptive period, usually one year after service separation; or continuous symptoms of the disease were manifested since service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.33(b), 3.307, 3.309(a); see also Walker v. Shinseki, 708 F. 3d 1131 (Fed. Cir. 2013). Because the current diagnosis of OSA is not listed as a chronic disease under 38 C.F.R. § 3.303(b), the presumptive service connection provisions are not applicable. Service connection may be established on a secondary basis for a disability which was either: (1) caused by, or (2) aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310(a). Compensation based on secondary aggravation will be awarded only for the degree of disability over and above the degree of disability prior to aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). Service Connection Analysis The Veteran contends that sleep apnea was either caused or worsened beyond the natural progression by the service-connected psychiatric disability. In the alternative, he contends that sleep apnea is related to service. After review of all the lay and medical evidence of record, the Board finds that the weight of the lay and medical evidence is against finding that a respiratory injury or disease or sleep apnea symptoms were manifested during service. The service treatment records, which are complete, are absent of complaints of, diagnoses of, or treatment for sleep apnea or sleep apnea symptoms. At the August 1979 service separation examination, the nose, lungs, and chest were clinically evaluated as normal. On the August 1979 and December 1979 service reports of medical history, the Veteran checked “no” when asked if he then had or had ever had ear, nose, or throat trouble, shortness of breath, and frequent trouble sleeping. Because the service treatment records are complete, the Veteran received in-service treatment for various medical ailments such as a right hand injury, a right wrist injury, a left elbow injury, and hearing problems throughout service with no report or complaint of sleep apnea symptoms, and the nose, chest, and lungs were clinically evaluated at the August 1979 service separation examination and determined to be normal, the Board finds that sleep apnea is a condition that would have ordinarily been recorded during service, if it had been present; therefore, the lay and medical evidence contemporaneous to service showing no sleep apnea symptoms, diagnosis, or treatment is of significant probative value and weighs against a finding of a relevant respiratory injury or disease or sleep apnea symptoms during service. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (citing Fed. R. Evid. 803(7) for the proposition that the absence of an entry in a record may be evidence against the existence of a fact if it would ordinarily be recorded); see also Fed. R. Evid. 803(7) (indicating that the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded). The weight of the evidence is against finding that sleep apnea was otherwise causally or etiologically related to service. The evidence shows no sleep apnea symptoms until approximately 2007 (i.e., 28 years after service separation). The earliest evidence of a sleep apnea diagnosis confirmed by a sleep study was shown in 2009, approximately 30 years after service separation. See September 2009 VA sleep medicine note (noting a fee-basis sleep study report showed a mixture of central and obstructive apneas and was consistent with complex sleep apnea syndrome). Considered together with the lay and medical evidence contemporaneous to service showing no sleep apnea symptoms, the approximate five-year period between service separation in 1990 and the onset of sleep apnea symptoms approximately in 1995 is an additional factor that weighs against service incurrence. See Buchanan v. Nicholson, 451 F.3d 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and complaint of a claimed disability is one factor to consider as evidence against a claim of service connection). The weight of the evidence is against a finding that the sleep apnea was either caused or worsened beyond the natural progression by the service-connected psychiatric disability. After reviewing the record and considering the relevant medical literature, the November 2020 VA reviewer provided a negative medical opinion on the question of whether sleep apnea was either caused or aggravated by the service-connected psychiatric disability. In support of the medical opinion, the November 2020 VA reviewer explained that sleep apnea occurred when the upper airway became blocked repeatedly during sleep, which reduced or stopped airflow and resulted in excessive daytime fatigue and sleepiness and a decrease in concentration. The November 2020 VA reviewer acknowledged the private medical opinion and medical article discussing an association between psychiatric disorders and sleep apnea and noted that, while there was a lot of emerging data between behavior health conditions such as PTSD, depression and anxiety, and the research showed there might be an association between psychiatric disorders and sleep apnea, there was currently no direct causation or aggravation of sleep apnea by major depressive disorder with anxiety shown. The November 2020 VA reviewer then specifically opined that sleep apnea was less likely than not caused or aggravated by the service-connected psychiatric disability. The November 2020 VA reviewer has medical expertise, had adequate information on which to base the medical opinion, and provided adequate rationale based on an accurate medical history and known medical principles. For these reasons, the November 2020 VA medical opinion is of significant probative value. In April 2014, a private reviewer purported to opine that the service-connected psychiatric disability contributed to the development of sleep apnea and aggravated sleep apnea; however, the medical opinion is of lesser probative value than the November 2020 VA medical opinion because the private reviewer noted that medical research had shown that psychiatric disorders were commonly associated with sleep apnea, an arousal-based mechanism initiated by mental health disorders promoted the development of sleep apnea, and both OSA and mental disorder symptoms decreased with CPAP treatment, but did not further explain how the facts in this particular case show that the service-connected psychiatric disability contributed to and/or worsened the sleep apnea. The November 2005 medical article entitled “Association of Psychiatric Disorders and Sleep Apnea in a Large Cohort” notes that a research study showed that sleep apnea was associated with a higher prevalence of psychiatric co-morbid conditions in VHA beneficiaries, which suggested that patients with psychiatric disorders and coincident symptoms with sleep-disordered breathing should be evaluated for sleep apnea; however, the medical article does not directly show a link, either by causation or aggravation, between sleep apnea and MDD with anxiety (i.e., psychiatric disability). Although the Veteran has asserted that sleep apnea is causally related to service or was caused or aggravated by service-connected psychiatric disability, he is a lay person and, under the specific facts of this case that include no in-service symptoms and negative findings upon examination, and documented post-service onset of symptoms and diagnosis of sleep apnea years after service, does not have the requisite medical training or credentials to be able to render an opinion regarding the cause of his sleep apnea. In addition, there are multiple risk factors or causative factors for sleep apnea, many of which the Veteran has that are unrelated to service and are unrelated to the service-connected psychiatric disability, and which are shown to have begun after service. https://medlineplus.gov/sleepapnea.html (noting that a person has an increased risk for sleep apnea if overweight, male, has a family history for sleep apnea, or has small airways). The etiology of sleep apnea is a complex medical etiological question dealing with the origin and progression of the respiratory system; sleep apnea is a disorder diagnosed primarily on symptoms, clinical findings and physiological testing; and would require knowledge of a complex interaction or relationship between the different body systems – physical (respiratory) disorder of sleep apnea with the psychological impairments of psychiatric disability. See Waters v. Shinseki, 601 F.3d 1274, 1277-1278 (Fed. Cir. 2010) (recognizing similarly the complexity of a nexus between a psychiatric disorder physical disorder). While the Veteran is competent to report respiratory symptoms that he experiences at any time, he is not competent to opine on whether there is a link between sleep apnea, symptoms of which were manifested several years after service, and active service or the service-connected psychiatric disability (causation or aggravation) because such opinions require specific medical knowledge and training. For these reasons, the Veteran's unsupported lay assertion is of no probative value. The only competent medical opinion of record - i.e., the November 2020 VA medical opinion – weighs against a causal relationship between service or service-connected psychiatric disability and sleep apnea, and no aggravation relationship between service-connected psychiatric disability and sleep apnea. Thus, the weight of the evidence is against a finding that sleep apnea was caused by active service or was otherwise caused or worsened beyond the normal progression by the service-connected psychiatric disability. In consideration of the foregoing, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the appeal of service connection for sleep apnea, including as secondary to the service-connected psychiatric disability; consequently, the appeal must be denied. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Palmer, 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.