Citation Nr: 21023210 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-47 576 DATE: April 20, 2021 ORDER Entitlement to service connection for sleep apnea, including as secondary to posttraumatic stress disorder (PTSD), bilateral hearing loss, and/ or tinnitus is denied. FINDING OF FACT The Veteran’s sleep apnea is not related to his active duty service and was not caused or aggravated by his service-connected posttraumatic stress disorder (PTSD), bilateral hearing loss, and/ or tinnitus. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310(a) (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1953 to June 1956 and from May 1959 to May 1976. This matter initially came to the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2017, September 2020, and February 2021, the Board remanded the Veteran’s appeal to the RO for further evidentiary development. In its February 2021 remand, the Board instructed the agency of original jurisdiction (AOJ) to obtain an opinion as to the etiology of the Veteran’s sleep apnea. As indicated in the discussion below, the March 2021 opinion is adequate to decide the claim and the AOJ therefore complied with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Entitlement to service connection for sleep apnea, including as secondary to posttraumatic stress disorder (PTSD), bilateral hearing loss, and/ or tinnitus The Veteran has contended that his sleep apnea was caused by his active duty service, or else is secondary to his service-connected PTSD, bilateral hearing loss, or tinnitus. The Veteran is in receipt of service connection for PTSD with insomnia, effective October 2013. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing entitlement to direct service connection requires: (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 disability and the disease or injury incurred or aggravated during service - which is the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Secondary service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence of (1) a current disability for which service connection is sought; (2) an already service-connected disability; and (3) that the disability for which service connection is sought was either (a) caused or (b) aggravated by the already service-connected disability. 38 C.F.R. § 3.310(a),(b). Turning to the evidence, the Veteran’s service treatment records do not show any complaint, diagnosis, or treatment for sleep apnea. In June 1971, the Veteran was referred to the Ear Nose and Throat specialist due to complaints of hearing loss. A January 1972 treatment record indicated that the Veteran could not sleep due to a headache and continuous ringing in his ears. His February 1976 report of medical history reported ear, nose and throat trouble, sinusitis, and shortness of breath, but the accompanying physician’s notes indicate that the Veteran was describing hearing loss and seasonal allergies. The February 1976 separation examination report reflects that all systems including lungs and chest, except for the skin, were normal. In September 2008, VA arranged a sleep study due to the Veteran’s complaints of waking up frequently, having difficulty falling back to sleep, and waking up tired. The sleep study diagnosed moderate obstructive sleep apnea (OSA) and stated that the Veteran snored for five percent of the time he was sleeping. In July 2013, the Veteran filed a claim for service connection for a sleep disorder, stating that the condition had its onset while he was serving on active duty in Vietnam. VA prepared a pre-surgery medical history and physical examination in July 2013. The Veteran denied a history of heavy snoring or a diagnosis of sleep apnea. In March 2014, the Veteran’s VA primary care provider wrote that the Veteran “states that he had a sleep study in the past. He is accompanied by his son [name redacted] in the office today. He son lives with him and denied snoring, gasping for breath, or apnea.” In an April 2014 Statement in Support of Claim, the Veteran stated that he was exposed to Agent Orange during his service. He stated that his insomnia onset during service and has continued since then. He also stated that he had shortness of breath when working on a civilian job in the mid-1980s and a lung specialist told him that his left diaphragm had stopped functioning, and the Veteran said that he lost his sense of smell shortly afterward. The Veteran’s April 2014 Notice of Disagreement described an inability to sleep at night which onset during active duty service in Vietnam. The Veteran discussed the 2008 sleep study and said that he was prescribed a sleeping mask which he said was ineffective. He described symptoms of inability to sleep at night, and did not mention snoring, gasping or periods of apnea. A March 2016 VA treatment record noted that the Veteran was unable to sleep and was prescribed Duloxetine for pain, tingling, and insomnia, which the Veteran said had no effect. The Veteran said that he had not slept well in months. In the September 2016 VA Form 9, the Veteran recalled the sleep study at the VA hospital and said that he was issued a CPAP machine which he still uses. The Veteran again reported difficulty falling asleep and daytime drowsiness as a result. A Disability Benefits Questionnaire for Sleep Apnea was prepared in December 2017. The clinician noted that the Veteran had been diagnosed with obstructive sleep apnea in 2008, and said that the Veteran did not currently have symptoms of sleep apnea such as snoring. In the accompanying medical opinion, the clinician opined that the sleep apnea was less likely than not caused by his service because sleep apnea is a disorder of the muscle in the throat, which does not cause psychological conditions or ringing of the ears. The clinician opined that the Veteran actually has insomnia, not sleep apnea. The clinician also opined that there is no evidence indicating that the Veteran’s sleep apnea condition has been aggravated beyond its natural progression. In August 2018, another VA medical opinion was prepared. The VA clinician opined that the Veteran’s sleep apnea was less likely than not caused by PTSD because, although his treatment records show difficulty falling and staying asleep which may indeed be caused by PTSD, sleep apnea is a physical condition unrelated to the Veteran’s mental state. An October 2019 VA emergency department treatment record notes that the Veteran was treated for feelings of chest tightness. The clinician stated that the Veteran reported a history of sleep apnea and is using his CPAP machine at night. An addendum VA medical opinion prepared in November 2019 stated that it is less likely than not that the sleep apnea condition is caused by the Veteran’s service-connected PTSD because sleep apnea is a disorder of the muscle in the throat which relaxes, causing a narrowing of the airway. The examiner stated that “sleep apnea would continue to occur with the removal or inclusion of any other condition.” The VA clinician stated that the Veteran has insomnia which is caused by a psychological and not a physical condition of muscles in the back of the throat. A separate November 2019 VA addendum medical opinion concluded that the condition of sleep apnea is less likely than not aggravated by a service-connected condition. This conclusion was also based on a finding that the Veteran has insomnia but does not likely have sleep apnea. A third November 2019 VA addendum medical opinion appeared to state that the Veteran’s condition is less likely than not aggravated by a service-connected disability but stated “Veteran sleep apnea is likely aggravated further by the PTSD, tinnitus or insomnia. Therefore, sleep apnea is less likely than not aggravated.” The fourth and final VA addendum medical opinion of November 2019 concluded that it was less likely than not that the Veteran’s sleep apnea was incurred during or caused by his service because the Veteran has insomnia, which does not cause sleep apnea, and it is “less as likely” that the Veteran has a condition that is related to sleep apnea. A Disability Benefits Questionnaire for Sleep Apnea was prepared in October 2020 based on a review of the VA e-folder. The doctor noted that the Veteran had been diagnosed with sleep apnea in 2008. A medical opinion was also prepared in October 2020. The doctor stated that the Veteran’s sleep apnea less likely than not was caused by or onset during service because (1) there is no objective evidence of sleep apnea in the service treatment records; (2) because sleep apnea was not diagnosed until 2008; and (3) because there is no evidence of sleep apnea in service based on the Veteran’s in-service complaints of insomnia, sinusitis and shortness of breath, which are vague complaints with multiple possible etiologies. The doctor opined that the sleep apnea was less likely than not caused by a service-connected condition because medical literature indicates that PTSD, bilateral hearing loss, and tinnitus do not cause obstructive sleep apnea directly; and because the Veteran was technically overweight at the time of the 2008 diagnosis and being overweight is a “majority factor” in obstructive sleep apnea. The doctor also concluded that the sleep apnea was less likely than not aggravated by a service-connected disability because, although studies show a positive correlation between PTSD and obstructive sleep apnea, a direct causative or aggravative relationship is not established; and, although OSA is a risk factor for PTSD, the doctor cited a study to show that the reverse is not stated true. In March 2021, a medical opinion was prepared based on a review of the Veteran’s records in the VA e-folder. The doctor opined that it is less likely than not that the Veteran’s sleep apnea had its clinical onset during service or was caused by service because there is no documentation of snoring, daytime fatigue, or apnea during service, and it was first diagnosed 32 years after his discharge from service. As to secondary service connection, the doctor opined that it was less likely than not caused or aggravated by PTSD, bilateral hearing loss or tinnitus because OSA is an obstruction of the upper airways which leads to snoring, and PTSD, hearing loss, and tinnitus are unrelated to upper airway obstruction. Turning to the criteria for direct service connection, the Veteran has met the first element, that of a current disability of sleep apnea. The December 2017 and November 2019 opinions concluded that the Veteran has insomnia but does not have sleep apnea. However, the October 2008 sleep study included in the evidence found that the Veteran had sleep apnea. The sleep study holds more probative value than the medical opinions because the sleep study was based on observation of the Veteran as he slept and measurement of his sleep architecture, and respiratory, snore, oximetry, cardiac, leg movement, arousal, and position profiles, whereas the medical opinions were based on the Veteran’s reports of symptoms. Although the October 2008 sleep study was prior to the claim period, the evidence as a whole reflects that a current disability existed at the time the claim was filed. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (Board erred in failing to address pre-claim evidence in assessing whether a current disability existed, for purposes of service connection, at the time the claim was filed or during its pendency). Thus, the first element of direct service connection is present. However, there is no evidence of an in-service disease or injury involving sleep apnea. The Veteran has reported that during his service he had difficulty falling asleep and staying asleep at night, and his service treatment records show diagnoses of seasonal allergies and hearing loss. But the Veteran has not reported that he had symptoms of sleep apnea such as snoring, gasping, or periods of apnea during service and the Veteran is in receipt of service connection for PTSD with insomnia, which contemplates the sleeping difficulties described. As there is no evidence of an in-service injury or disease relating to sleep apnea, direct service connection cannot be established. In any event, there are multiple medical opinions against a relationship between sleep apnea and service, which explained the reasons for their conclusions based on an accurate characterization of the evidence of record, and no positive medical opinions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). In addition, the Veteran did not indicate that he had continuous sleep apnea symptoms since service and he is not competent to opine on the complex medical question of a relationship between current sleep apnea and service. Jandreau v. Nicholson, 492 F.3d 1372, 1376, n. 4 (Fed. Cir. 2007) (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”). The combat rules are not for application because the Veteran did not indicate he had sleep apnea symptoms in service. Cf. Reeves v. Shinseki, 682 F.3d 988, 998 (Fed. Cir. 2012). The weight of the probative evidence is therefore against direct service connection. Turning to secondary service connection, the Veteran has a current disability as discussed immediately above. Service-connection has been granted for PTSD with insomnia, bilateral hearing loss, and tinnitus. The first two requirements of secondary service connection have been met. 38 C.F.R. § 3.310(a). The third requirement of secondary service connection is a finding that the disability for which service connection is sought was either caused or aggravated by the already service-connected disability. 38 C.F.R. § 3.310(a),(b). The March 2021 medical opinion concluded that it is less likely than not that the Veteran’s OSA was caused or aggravated by PTSD with insomnia, hearing loss or tinnitus because those conditions are entirely unrelated to OSA, which is an upper airway obstruction. As the physician explained the reasons for his conclusion based on an accurate characterization of the evidence of record, his opinion is entitled to substantial probative weight. See Nieves-Rodriguez, 22 Vet. App. at 304. There is no medical opinion to the contrary. In the July 2020 Brief, the Veteran contended that medical literature shows a high prevalence of OSA in psychiatric patients, particularly in those with PTSD. Medical article and treatise evidence may suffice to establish nexus in instances where “standing alone, [it] discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion.” Sacks v. West, 11 Vet. App. 314, 317 (1998). Moreover, medical article and treatise evidence “can provide important support when combined with an opinion of a medical professional.” Id. In this case, however, the October 2020 medical opinion addressed this contention and noted that although studies show a positive correlation between the two disorders, a direct causative or aggravative relationship has not been established. The physician cited a study to show that PTSD is not a risk factor for OSA. Thus, the treatise evidence is neither combined with a consistent opinion of a medical professional nor reflective of a reasonable certainty with plausible causality. Although the Veteran believes his OSA is caused or aggravated by one or more of his service-connected PTSD with insomnia, bilateral hearing loss, and tinnitus, the Veteran is not competent to provide a medical opinion regarding this issue. The issue is medically complex, as it requires knowledge of the alleged relationships between a psychiatric disorder, hearing disorders, and a respiratory disorder. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d at 1377 n. 4 (Fed. Cir. 2007). Moreover, as noted, the Veteran did not indicate he had sleep apnea symptoms (as opposed to difficulty sleeping for which he is being compensated) in and since service. For the foregoing reasons, the preponderance of the evidence is against the claim of service connection for sleep apnea on a direct and secondary basis. The benefit of the doubt doctrine is therefore not for application and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Dean, Associate 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.