Citation Nr: 21022208 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 14-32 375 DATE: April 15, 2021 ORDER Service connection for obstructive sleep apnea (OSA), including as secondary to a service-connected psychiatric disorder, is denied. FINDING OF FACT The probative medical evidence indicates the Veteran’s current OSA was not caused or aggravated by his service-connected psychiatric disorder(s) or medication he takes for those disorders, and is not otherwise related to service. CONCLUSION OF LAW The criteria to establish service connection for OSA have not been met. 38 U.S.C. §§ 1110, 5107 (b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1975 to February 1976, and active duty for training (ADT) from January 1991 to March 1991 while serving with the Army National Guard. In March 2020, the Board of Veterans’ Appeals (Board) remanded this matter to the VA Regional Office (RO) to obtain a medical opinion, which was completed in April 2020. Review of the completed development reveals that the RO substantially complied with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service connection for OSA Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). “To establish a right to compensation for a present disability, a Veteran must show: ‘(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’ - the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310 (b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination about the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s 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, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish observable symptoms, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. OSA is a specific medical condition defined as the “cessation of breathing resulting from the collapse or obstruction of the airway with the inhibition of muscle tone that occurs during REM sleep.” See Dorland’s Illustrated Medical Dictionary 116-17 (32nd ed. 2012). The Veteran was diagnosed with OSA following a December 2011 VA sleep study. He contends that his current OSA began in service, or, alternatively, was caused or aggravated by his service-connected depressive disorder and posttraumatic stress disorder (PTSD). He also contends that medication he takes for his psychiatric disorder(s) caused his OSA. The Veteran’s service treatment records (STRs) are silent for reports, treatment, or diagnoses of OSA or related symptoms. In his June 1975 pre-enlistment report of medical history, the Veteran denied ever having had “frequent trouble sleeping,” “asthma,” or “shortness of breath.” The Veteran continued to deny these symptoms in a January 1976 report of medical history recorded at separation from active duty. The report of his separation physical indicated normal nose, mouth and throat, and lung and chest evaluations. Periodic physical examination reports from the Veteran’s period of National Guard service also indicated normal clinical evaluations. In a September 1992 report of medical history, the Veteran continued to deny ever having had “frequent trouble sleeping.” There were otherwise no references to OSA, breathing difficulties, or sleep disturbances in the STRs. STRs are highly probative both as to the Veteran’s subjective reports and their resulting objective findings. They were generated with a view towards ascertaining the Veteran’s then-state of physical fitness and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board’s decision); see also LILLY’S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803 (4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). Although OSA is not documented in his STRs, the Veteran asserts that the condition began during active service. The Veteran was afforded a VA sleep apnea examination in February 2012. The Veteran reported having sleep apnea for eight years while in service, although he was not diagnosed with OSA until a December 2011 VA sleep study. The VA examiner stated that, according to medical literature, depression may cause insomnia but does not cause sleep apnea. In an October 2012 Statement in Support of Claim (VA Form 21-4138), the Veteran reported he did not have OSA until he started taking medications for his service-connected conditions. He also asserted that his service-connected conditions prevented him from exercising and led to depression and lack of sleep, which in turn caused OSA. In his August 2014 substantive appeal (VA Form 9), the Veteran continued to assert that he developed OSA over a long period of time due to prescribed medications. He asserted that research showed a link between sleep apnea and certain medications, including allopurinol, amlodipine besylate, Actos, Hydrochlorothiazide, lisinopril, meloxicam, and Effexor. The Veteran also reported several doctors have informed him that Allopurinol causes OSA. He asserted that he took Allopurinol since 1991. The Veteran also cited an internet-based source (eHealthMe.com) which is essentially a public database that collects self-reports of side effects of medications. Notably, the website contains a disclaimer that its information “. . .does not establish causal relationship, and has not been supported by scientific studies or clinical trials unless otherwise stated.” In a December 2018 statement, the Veteran’s wife reported that she began noticing the Veteran was not sleeping well after he was medically discharged from the National Guard in 1993. She reported that the Veteran became depressed due to his injury and was frequently tired due to lack of sleep. The Veteran was afforded an additional VA sleep disorders examination in September 2019. The VA examiner noted there was no evidence of sleep apnea symptoms during active duty and the Veteran was not diagnosed with OSA until more than 30 years after service. The examiner explained that depression and OSA are not medically related, and that the physiological condition of sleep apnea is an entirely separate entity from depression. She explained that OSA is a physical obstruction of the airway, and occurs when breathing is stopped or reduced during sleep because of narrowing or blockage of the upper airway. The examiner stated that depression and medication used to treat depression do not cause, or worsen obstructions of the airway. In a November 2019 letter, the Veteran reported symptoms of chronic snoring, fatigue, and lack of sleep due to OSA. He reported that he mentioned these symptoms to several doctors before 2009 but did not receive any guidance on how to treat his symptoms. The Veteran indicated he was previously unaware of OSA, and a non-VA doctor identified related symptoms in 2009. He further asserted that disturbed sleep and lack of oxygen may lead to hypertension, heart disease and depression, and that anti-depressants may worsen sleep-related breathing in individuals with depression. The Veteran did not cite a medical or other source in support of these contentions. In an April 2020 addendum opinion, another VA examiner concluded the Veteran’s OSA was not caused by depression or antidepressants. The examiner stated there is no mental condition that causes OSA, and that OSA has a clear and specific etiology (cause). She explained that OSA is caused by anatomical variations in the craniofacial features and/or neck, and there is no medical evidence suggesting it is caused by depression or any other mental condition. Additionally, the examiner noted there is no evidence or medical literature suggesting that the medications Effexor or Trazadone cause or aggravate OSA. The preponderance of the medical evidence is against finding that the Veteran’s current OSA was caused or aggravated by his service-connected psychiatric disorders, or otherwise related to service. The internet-based source cited by the Veteran is not probative because it only suggests a correlation between OSA and certain medications, but does not address the cause of the disorder. Importantly, the website states that the information it contains “does not establish causal relationship, and has not been supported by scientific studies or clinical trials.” Although the Veteran has asserted that several doctors have told him his OSA is caused by antidepressants and other medications, he did not identify those individuals or submit a medical opinion to that effect. The Veteran was afforded the opportunity to submit such evidence, but has not done so. In contrast, the 2012, 2019 and 2020 VA opinions are highly probative. These opinions indicated that, based on medical literature, OSA is not caused by depression or antidepressants. Additionally, the 2020 VA examiner explained that OSA has a clearly identifiable cause that is physiological in nature, and there is no medical evidence indicating OSA can be caused by a mental disorder. The Board has considered and weighed the probative value of the Veteran’s and his wife’s lay assertions that the Veteran had sleep difficulty, insomnia, and fatigue during and since active service. However, while the Veteran is competent to report these symptoms, as a layperson he is not competent (meaning he lacks medical expertise) to give an opinion on the relationship between his psychological disorders and OSA, a physiological disorder involving the physical obstruction of the airway. See Jandreau, supra. The Veteran’s lay statements are outweighed by the more probative VA opinions. As the preponderance of the evidence indicates the Veteran’s OSA was not caused by his service-connected psychiatric disorder(s), medication, or otherwise related to service, the claim is denied. Where, as here, the medical evidence against the claim substantially outweighs that in favor of the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Hiaasen 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.