Citation Nr: 21022200 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 17-24 018 DATE: April 15, 2021 ORDER Entitlement to service connection for sleep apnea is granted. FINDING OF FACT The evidence is in relative equipoise regarding whether sleep apnea was caused by service-connected disabilities. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from June 1988 to June 1992 and from December 2003 to April 2005. In August 2017, the Veteran testified at a travel board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been reviewed. This case was previously remanded for additional development in April 2019. 1. Entitlement to service connection for sleep apnea The Veteran contends that his sleep apnea is related to service or his service-connected disabilities. At the Board hearing, the Veteran’s representative noted that PTSD causes insomnia and sleep disturbances. The Veteran further contends that, if weight gain is a factor for sleep apnea, the role of his service-connected disabilities in his weight gain should be considered. The Veteran stated that he had sleep symptoms, such as snoring, in service. See December 2019 statement. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service-connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. See 38 C.F.R. § 3.310 (a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). When aggravation of a Veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen, supra. Service treatment records reflect that the Veteran reported trouble sleeping. A May 2004 sick slip noted, “right ankle still hurts, sleeping disorders.” The record includes lay statements from individuals who served with the Veteran. A December 2016 statement from L.E. indicated that he experienced the Veteran’s loud snoring and breathing problems and had to wake him up on several occasions. A February 2020 statement from another service member, D.A., indicated that he witnessed the Veteran snoring loudly during their deployment from 2004 to 2005. An April 2015 VA treatment note reflects that the Veteran reported trouble falling, staying asleep, or sleeping too much “nearly every day.” An August 2016 private treatment record shows that the Veteran had a sleep study and was diagnosed with obstructive sleep apnea. The record includes medical opinions both for and against the claim. In September 2016, a VA examiner opined that sleep apnea is a known diagnosis, which is not related to service in the Persian Gulf. The examiner opined that the most important risk factors for OSA are advancing age, male gender, obesity, and craniofacial or upper airway soft tissue abnormalities. In February 2017, a VA examiner opined that sleep apnea is not related to service. The examiner reviewed the lay statement of L.E. and opined that the buddy statement does not provide objective clinical documentation required for OSA. The examiner indicated that the clinical symptoms observed in the buddy statement may be due to other medical conditions or the stated differential diagnosis. The Veteran had a VA examination in November 2019. The examiner noted a history of sleep apnea, diagnosed by sleep study in August 2016. The examiner opined that sleep apnea is less likely than not related to service. The examiner noted that the service treatment records from the Veteran’s two periods of service are absent for chronic sleep complaints, treatment, or diagnosis for a sleep disorder. A May 2004 sick slip noted poor sleep due to his right ankle. The examiner noted that the clinical risk factors are advancing age, male gender, obesity, and craniofacial morphology, or upper airway soft tissue abnormalities. The examiner indicated that a nexus could not be established. The examiner noted that medical literature supports that symptoms of sleep apnea are nonspecific diagnostic accuracy poor. A sleep study is required for a diagnosis. The examiner observed that the Veteran has a 69-pound weight gain from discharge to time of diagnosis. The Veteran has noted risk factors, to include obesity, male sex, and advancing age. The examiner further opined that sleep apnea is not caused by or aggravated by PTSD. The examiner noted that there is ample documentation that PTSD and OSA often co-exist. While they may exist together in the groups studied, the hypothesis that OSA is caused by or proximately due to PTSD is not supported by medical literature. The examiner opined that medical literature does not support that PTSD aggravates OSA. The VA examiner opined that sleep apnea is less likely than not related to PTSD. The examiner opined that the “obstructive” etiology means some sort of structural or mechanical aberration of the naso-pharyngeal architecture (which could be bony or soft tissue), that interferes with normal respiration during sleep. The examiner listed the identified structural factors. The examiner opined that PTSD is a mental health problem. The examiner opined that an exhaustive search of literature shows that there was not one peer-reviewed article that implied that a mental health condition is the cause of a nasopharyngeal structural/ architectural condition (specifically OSA). In February 2020, the Veteran submitted a medical opinion from a private physician, D.A., M.D. The opinion indicated that the Veteran’s claims file was reviewed. Dr. D.A. opined that the Veteran’s sleep apnea is more likely than not caused by or aggravated by the Veteran’s service-connected PTSD, migraine headaches, and tinnitus. He noted that it is well established in scientific literature that sleep apnea is more likely than not secondary to mood disorder. The examiner cited medical studies showing a high rate of comorbid insomnia and PTSD in veterans. He stated: The critical issue to understand is that the mechanism of the development of sleep apnea is the same in both obese patients and in patients suffering from PTSD. In both cases, there is an alteration of sleep and the involvement of REM sleep. To argue that only obesity causes sleep apnea is incorrect. Obesity and PTSD are more likely to cause sleep apnea than either condition alone. The incidence of OSA in mood disorders is 3-4 times higher than that reported for younger obese men. Veterans with PTSD and mood disorder are 3-5 times more likely to suffer from OSA than obese middle-aged men. Dr. D.A. further opined that the Veteran’s sleep apnea is caused or aggravated by his migraine headaches and tinnitus. He noted that chronic pain and disrupted sleep are closely associated. He noted that studies show that tinnitus patients experience a disruption in their sleep patterns. A VA examination dated in August 2020 addressed aggravation of sleep apnea due to service-connected disabilities. The examiner opined that it is less likely than not that sleep apnea was aggravated by service-connected disabilities. It was noted that the Veteran had a sleep study in August 2016 that showed an apnea-hypoxia index (AHI) of 18.7. There are no repeated studies in the record. He has been treated with CPAP. The examiner opined that there is nothing in the record to support that sleep apnea has been aggravated and no objective evidence that OSA was permanently worsened beyond the natural progression. The examiner concluded that it is therefore less likely than not that the Veteran’s PTSD with depressive disorder aggravated his OSA. The Board finds that the evidence is in equipoise as to whether obstructive sleep apnea is proximately caused by the Veteran’s service-connected disabilities. The February 2020 private opinion was based on accurate facts and provided a detailed rationale that considered lay and medical evidence. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Therefore, resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for obstructive sleep apnea. 38 C.F.R. § 3.310. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Catherine Cykowski 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.