Citation Nr: 21023794 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 14-28 665A DATE: April 21, 2021 ORDER Service connection for obstructive sleep apnea, including as secondary to service-connected right shoulder disability and/or service-connected depressive disorder, is denied. FINDINGS OF FACT 1. There is a current diagnosis of obstructive sleep apnea. 2. Symptoms of sleep apnea did not begin during service. 3. Sleep apnea symptoms began after service. 4. The sleep apnea, which was first diagnosed after service, is not related to active duty service. 5. The Veteran is service connected for a right shoulder disability. 6. The Veteran is service connected for depressive disorder. 7. The sleep apnea is not caused by, or increased in severity beyond the natural progress by, any service-connected disability, to include the right shoulder disability and the depressive disorder. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea, including as secondary to the service-connected right shoulder disability and depressive disorder, have not been met. 38 U.S.C. §§ 1110, 1131, 1154, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the Army during Peacetime and the Gulf War Era from March 1985 to May 2009. The Veteran filed a new claim for service connection for sleep apnea in December 2014. The claim for service connection for sleep apnea was denied in a March 2015 Rating Decision. The Veteran filed a Notice of Disagreement. VA issued a Statement of the Case in January 2016, continuing the denial of the claim. The Veteran entered a substantive appeal. In a July 2019 decision, the Board denied the appeal for service connection for sleep apnea. The U.S. Court of Appeals for Veterans Claims remanded the Board decision in July 2020, holding that medical opinions were not adequate. The Board remanded the case in December 2020 for the Agency of Original Jurisdiction (AOJ) to schedule new medical examinations. After review of the new examinations, VA issued a Supplemental Statement of the Case in January 2021, continuing the denial of the claim. The current decision is based on the continued denial of the claim for sleep apnea. Service Connection for Sleep Apnea is Denied 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Service connection may be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See id.; Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or the result of, a service-connected disease or injury. To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Direct Service Connection for Sleep Apnea The Veteran has contended that sleep apnea began during service. The Veteran has contended alternatively that the sleep apnea is caused by the service-connected right shoulder disability and/or the service-connected depressive disorder. Sleep apnea was first diagnosed in December 2014. The Veteran is currently service connected for a right shoulder disability and for depressive disorder. After a review of all the evidence, lay and medical, the Board finds that the weight of the evidence shows that symptoms of sleep apnea did not have onset during service, but began after service, and that the currently diagnosed sleep apnea is not otherwise related to active duty service. The Veteran served from March 1985 to May 2009. During service in April 1992, the Veteran denied any breathing problems or difficulty sleeping. The service treatment records show that in January 2005 during service the Veteran denied any breathing symptoms or difficulty sleeping. The Veteran reported being in good health, except for some unrelated symptoms pertaining to the knee, left toe, and middle finger fracture. During service in September 2008, the Veteran reported feeling the same as during the prior medical assessment. He reported historical complaints of lower back injury, knee pain, and lower foot issue, and current shoulder pain. The self-assessment is silent for any mention of sleeping or sleep apnea related symptoms. The rest of the service treatment records, which are complete, reflect that during service the Veteran sought treatment for various other symptoms and disorders; however, the service treatment records show no complaints or symptoms of sleep apnea during service. The Veteran presented for treatment of other conditions including knee pain, foot pain, back pain, shoulder pain, hyperlipidemia, elevated blood pressure, plantar fascial fibromatosis, patellofemoral syndrome, trapezoid strain, a urinary tract infection, a head injury, headaches, sore throat, chest cold, and a fever, among others. In consideration of the other evidence included in the service treatment records showing complaints and treatment for various disorders, it is likely that any history of complaints or symptoms of sleep apnea such as sleeping difficulty or unexplained fatigue or daytime hypersomnolence would similarly have been mentioned and/or detected during service. Any sleep apnea or symptoms would have been recorded in the service treatment records had such symptoms occurred during service, either directly as a symptom or as part of multiple medical histories taken when treating various other disorders. As a result, the absence of any in-service complaint, finding, or reference to treatment for sleep apnea or related symptoms is one factor in this case that weighs against finding in-service sleep apnea symptoms during service. At a September 2013 VA examination, the Veteran reported experiencing insomnia since approximately September 2009 (four months after service) or March 2010 (10 months after service); however, the Veteran reported that the discomfort in bed was due to pain in the right shoulder, rather than sleep apnea. The Veteran reported that he is uncomfortable in bed, which interferes with the ability to sleep, that he would awake up two times a night in order to adjust position, and was unable to lie on the right side. At this examination, the Veteran did not report difficulty breathing at night, experiencing apneas, or any similar symptom of sleep apnea. The only sleep-related symptom reported was hypersomnolence from the insomnia. In December 2014, the Veteran filed a claim for compensation for sleep apnea. On this claim form and while pursuing the appeal for service connection for sleep apnea, the Veteran presented new histories of onset of sleep apnea symptoms that were at variance with other histories reported by the Veteran, including during previous treatment and examinations. In an attached statement with the claim, the Veteran reported that he had been experiencing sleep disturbances and severe hypersomnolence for ten years (since December 2004). The Veteran reported that his wife insisted he undergo a sleep study during and after service, but that he did not undergo a sleep study until December 2014. In a March 2015 Notice of Disagreement, the Veteran reported that he was unable to sleep and was tired every day for many years. In a statement provided in July 2015, the Veteran reported that he believes his sleep apnea began during service. Also in support of the claim for compensation, after the claim for direct service connection for sleep apnea had been denied by VA, the Veteran for the first time presented a theory of secondary service connection. At an August 2018 VA examination that was being conducted as part of the compensation process, the Veteran reported that the sleep apnea, which began in 2014, was due to the service-connected depression. The Veteran is competent to testify as to some of the symptoms of sleep apnea. The Veteran can testify as to symptoms such as being awakened from sleep, a feeling of gasping for air, excessive daytime hypersomnolence, and unexplained feeling of not having rested after a night’s sleep, as these are symptoms the Veteran is capable of observing. The Veteran is not capable of observing his own apneas, as during an apnea the Veteran is asleep. While the Veteran has competently testified as to experiencing hypersomnolence and insomnia, these are not symptoms of sleep apnea. The Board finds that the Veteran’s more recent testimony of onset of sleep apnea symptoms in service is inconsistent with, and outweighed by, other more contemporaneous lay and medical evidence, so is not credible. The Veteran has provided contradictory statements as to the date of onset of his sleep apnea. As noted above, in September 2013, the Veteran reported experiencing difficulty sleeping in either September 2009 or March 2010, which would indicate an onset within a year after service. When the Veteran filed his claim for service connection for sleep apnea, he changed the story to one of onset of sleep apnea symptoms in service. In December 2014, the Veteran stated that he had experienced sleep disturbances and hypersomnolence since December 2004. In July 2015, also during the claim on appeal, the Veteran again asserted this new story that sleep apnea symptoms began during service. Inconsistent with the reports of onset of sleep apnea during service, in August 2018, the Veteran again reported that his sleep apnea began in 2014, which is five years after separation from service. The inconsistency in the Veteran’s reporting of the date of onset diminish the credibility of the Veteran’s testimony regarding onset of symptoms in service, in addition to the other more contemporaneous histories, including for treatment purposes, that show no sleep apnea symptoms during service and for years after service. The history of post-service onset of sleep apnea symptoms and diagnosis in 2014 onset is more consistent with the service treatment record findings and history by the Veteran, the Veteran’s other reports of unrelated sleep symptoms due to a shoulder disorder, the Veteran seeking treatment for sleep apnea in 2014, and sleep study findings showing sleep apnea in 2014. Similarly, treatment records from 2014 do not describe a 10-year history of sleep apnea, or service onset, or actual sleep apnea symptoms (as opposed to sleep disturbance due to a shoulder disorder) soon after service; rather, the overall disability picture shows symptoms and diagnosis of sleep apnea symptom in about 2014. See December 2014 Private Treatment Records. In addition to inconsistencies in reporting the onset of sleep apnea symptoms, as the claim for compensation has progressed, the Veteran has provided inconsistent statements as to the perceived cause of the sleep symptoms. The Veteran first contended that the sleep apnea was caused by the right shoulder disability, although he only described insomnia and inability to sleep due to shoulder discomfort, rather than sleep apnea symptoms. See September 2013 VA Examination. The Veteran only later contended that the sleep apnea began during service. See December 2014 Veteran’s Statement. In March 2015, the Veteran returned to his assertation that the sleep apnea was caused by the right shoulder disability. See March 2015 VA Examination. In July 2015, the Veteran asserted that the apnea began during service. See July 2015 Report of General Information. Finally, years into the claim, the Veteran asserted that his sleep apnea was caused by the depressive disorder. See August 2018 VA Examination. The Veteran’s statements of onset of sleep apnea symptoms during service are inconsistent with the weight of the other, more contemporaneous lay and medical evidence. As outlined above, the service treatment records are silent for any complaint or report of symptoms of sleep apnea, notwithstanding the Veteran availed himself of available treatment for multiple other symptoms that he experienced during service. At least three times during service, when such symptoms were elicited, the Veteran affirmatively denied having any sleeping difficulties during service (in 1985, 1992 and 2005). Immediately prior to separation from service, the Veteran filed a variety of claims for compensation under the Benefits Delivery at Discharge (BDD) program. These included claims for service connection for hypertension, left shoulder pain, a lower back disorder, plantar fasciitis in the right foot, a right toe condition, and right knee patellofemoral syndrome. Notably, the Veteran did not bring a claim for sleep apnea or any sleep-related or sleep apnea-related symptoms at service separation, which is inconsistent with his more recent, noncredible, history of onset of sleep apnea during service. To additionally claim service connection for sleep apnea would have required simply writing something as simple as sleep problem on the same claim form on which he meticulously claimed a list of disabilities he believed were service related, and was doing so contemporaneous to service when his memory would have recalled symptoms present at that time, had any sleep symptoms actually been present at that time. The Veteran did not seek treatment for any sleeping disorder until December 2012, four years after separation from service, when he claimed difficulty sleeping due to right shoulder pain. The Veteran did not seek out a sleep study until December 2014, six years after separation from service. The Veteran’s more recent statements that his apnea began during service, statements made, for example, on a claim form and notice of disagreement, while pursuing service connection (compensation) for sleep apnea, have less probative value than the other statements of record showing no sleep symptoms in service, no sleep apnea symptoms in service, post-service onset of sleep apnea symptoms, the Veteran’s affirmative denials of sleep-related symptoms during service and after service, and an absence of complaints or treatment for years after service. See Curry v. Brown, 7 Vet. App. 59 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by the veteran; affirming Board decision that cited from MCCORMICK ON EVIDENCE (3rd ed.1984) for the proposition that “memory hinges on recency” and that earlier statements are generally more trustworthy than later ones). Weighing all these factors, the Board finds that the Veteran’s more recent statements regarding the onset of sleep apnea in service are outweighed by the other lay and medical evidence, so are not credible. In December 2014, the Veteran’s wife provided a statement. She reported that she had been married to the Veteran since 1987. She also reported that the Veteran began snoring around 1996, with symptoms including gasping for air, startled wakes, and leg-shaking during sleep. The Veteran’s wife is competent to testify as to symptoms she observed the Veteran suffering from, including gasping for air, startled wakes, and leg-shaking during sleep. However, her statements suffer from similar credibility deficiencies as the Veteran’s. These assertions of onset of sleep apnea symptoms during service are contradicted by some of the Veteran’s own, more contemporaneous statements regarding the date of onset, as well as the Veteran’s denial of sleep related symptoms in and since service, and absence of complaints by the Veteran during service or for years after service. The spouse’s version of onset of symptoms during service is contradicted by evidence contemporary with service, both an absence of any mention of sleep apnea-related symptoms during service and the Veteran’s affirmative denials of such symptoms when presenting medical histories during service and at the service separation examination. The spouse’s statement comes 18 years after the alleged occurrence of symptoms reported to have begun during service. As this assertion of onset of sleep apnea symptoms during service is inconsistent with, and outweighed by, other, more contemporaneous lay and medical evidence of record, including more contemporaneous histories reported by the Veteran, the Board finds that this assertion of onset of sleep apnea symptoms during service is not credible. The absence of any in-service report of injury, or complaint, finding, or reference to treatment for sleep apnea or related symptoms under the facts of this case is one factor, among other factors considered by the Board including a lack of post-service symptoms until four years after service, inconsistent post-service histories for the onset date of the apnea, and filing of a number claims for compensation after service that do not mention sleep apnea, that weighs against a finding in-service sleep apnea or chronic symptoms during service. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (stating that VA may use silence in the service treatment records as evidence contradictory to a veteran’s assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred) (Lance, J., concurring); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (the absence of a notation in a record may only be considered if it is first shown both that the record is complete and also that the fact would have been recorded had it occurred); 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). Significantly, the Veteran had previously filed a claim for service connection for chronic sleep problems, but did not mention any history of sleep apnea or symptoms, despite also claiming service connection for injuries to chronic sleep problems. See December 2012 Rating Decision. The absence of a claim for service connection for sleep apnea is significant in light of the recent medical history provided by the Veteran, which asserts onset of sleep apnea in service. See, e.g., July 2015 Report of General Information. Given these facts, as well as the absence of any in-service complaint, finding, or reference to treatment for sleep apnea or related symptoms, the Board finds that the Veteran’s and spouse’s recently reported history of in-service sleep apnea and symptoms made pursuant to this claim for compensation is inconsistent with and outweighed by the other lay and medical evidence of record, so is not credible. For these reasons, based on the multiple factors stated in this decision, the Board finds that there was no in-service sleep apnea or symptoms during service, that sleep apnea began years after service, and the sleep apnea is not otherwise related to service. Secondary Service Connection In a July 2013 statement, the Veteran described experiencing “lack of sleep due to right shoulder labral tear, rotator cuff tear secondary to SC right shoulder condition and frequent urination due to SC hypertension.” See July 2013 Veteran’s Statement. This claim for lack of sleep was in lieu of a claim for sleep apnea, as the Veteran believed that he could not “claim sleep apnea due to a lack of a diagnosis during service[.]” Id. The claim for loss of sleep was denied in an October 2013 Rating Decision. The Veteran did not pursue the sleep loss claim. On a VA Form 9 for a separate shoulder issue, the Veteran stated that he was unable to sleep at night due the loose movement of his shoulder pain, for which he was prescribed sleeping pills. See August 2014 Form 9. As noted above, at a September 2013 VA examination, the Veteran reported experiencing insomnia since approximately September 2009 or March 2010. The Veteran reported that he is uncomfortable in bed, which interferes with the ability to sleep. He reported waking up two times a night in order to adjust position, being unable to lie on the right side, and that the discomfort in bed was due to pain in the right shoulder. In this examination, the Veteran did not report difficulty breathing at night, experiencing apneas, or any similar symptom of sleep apnea; he only reported hypersomnolence from the insomnia. On the August 2014 Form 9, the Veteran reported being unable to sleep at night due to the loosened movement of the right shoulder, for which he was prescribed sleeping pills. In March 2015, the Veteran reported that his sleep apnea is caused by or aggravated by the right shoulder disability. In August 2018, the Veteran reported that his sleep apnea began in 2014 due to depression. After a review of all the lay and medical evidence, the Board finds that the weight of the lay and medical evidence shows that the current sleep apnea is not caused by, or increased in severity beyond the natural progress of the disease by, any service-connected disabilities, including the right shoulder disability and the depression. A private opinion was tendered in January 2015 purporting to link the sleep apnea to service; however, the statement is not adequate for the purposes of determining whether the sleep apnea is causally connected to any service-connected disability because it does not address secondary service connection or aggravation. Following a VA examination in March 2015, the VA examiner opined that the sleep apnea is less likely than not caused or aggravated by the right shoulder disability. The rationale was that orthopedic conditions are not etiologically related to sleep apnea. Following another VA examination in January 2021, the VA examiner opined that the sleep apnea is less likely than not caused or aggravated by the depressive disorder. The rationale was that medical literature does not support depression causing sleep apnea. For the reasons described above, the Board finds that a preponderance of the lay and medical evidence is against the claim for secondary service connection for sleep apnea, as secondary to service-connected disabilities. For these reasons, the appeal must be denied. Responses to CAVC’s Decision and the Veteran’s Arguments In the July 2020 Court of Appeals for Veterans’ Claims decision, the Court required that the Board address all arguments raised by the Veteran and the representatives, including as to the qualifications of the VA examiner who provided an examination in October 2015. This section will address the requirements raised by the Court, and all arguments raised by the Veteran and representatives. CAVC Orders First, the Court required that the Board obtain a new examination that treats the Veteran’s wife’s January 2015 (presumably the December 2014) lay statement. This was in response to an October 2015 VA examination where the examiner improperly made a credibility determination regarding the wife’s statement. See July 2020 CAVC Decision. The January 2021 VA examination fulfilled this requirement: the examiner noted that they considered all the lay and medical evidence, and made a determination based purely upon a medical interpretation of the facts, rather than a credibility determination. See January 2021 VA Examination. As the Board has determined in this decision, after a weighing of all the evidence, that there was in fact no in-service injury, disease, or event (including relevant symptoms) to which the sleep apnea that began after service and was diagnosed after service could be related, the January 2021 direct service connection nexus opinion need not be addressed in this decision because there is nothing in service to which the currently diagnosed sleep apnea could be related by medical opinion. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (holding that the Board is not obligated to consider whether a claimant is entitled to a medical examination where the Board properly finds that the claimant did not suffer a an event, injury, or disease in service); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that medical evidence is inadequate where medical opinions are general conclusions based upon an inaccurate factual history). Second, the Court required the Board to specifically address the private opinion provided by Dr. Zanchi (the January 2015 private nexus opinion). As discussed above, the Board has found the opinion does not address the connection between the sleep apnea and any service-connected disability. The private opinion was not addressed in the direct service connection portion of the decision because, where as in this case the weight of the evidence shows no in-service injury, disease, or event, the claim for direct service connection must be denied, and the Board does not reach the question of nexus to service. See Bardwell, 24 Vet. App. 36 (holding that the Board is not obligated to consider whether a claimant is entitled to a medical examination where the Board properly finds that the claimant did not suffer a an event, injury, or disease in service); Reonal, 5 Vet. App. at 461 (holding that medical evidence is inadequate where medical opinions are general conclusions based upon an inaccurate factual history). Third, the Court required the Board to address the Veteran’s claim that medical literature supports a connection between sleep apnea and an acquired psychiatric disorder. As noted above, the January 2021 VA examiner opined that medical literature does not support such a causal link. The case specific medical opinion evidence based in accurate facts of this Veteran’s case is of more probative value than such general association suggested by a medical article. The Veteran and his representatives supplied a web article called “Association of Psychiatric Disorders and Sleep Apnea in a Large Cohort,” which examined the link between sleep apnea and psychiatric disorders. In the discussion section of the article, the authors describe the link between depression and sleep apnea. The article described the link between the two disorders in two ways: either (1) as “depression secondary to a general medical condition” or (2) that “excessive daytime sleepiness and fatigue resulting from sleep apnea can lead to significant social and personal problems and result in depression.” See Association of Psychiatric Disorders and Sleep Apnea in a Large Cohort, 28 SLEEP 1405, 1408 (2005). The article describes how sleep apnea causes depression: it does not support the converse, that depression causes sleep apnea. Consequently, the medical literature provided by the Veteran does not support the assertion of association. Finally, the Court required the Board to address the qualifications of the October 2015 examiner. The Board finds that this point is moot, as the October 2015 examination was not used in this decision. The October 2015 examination covers the question of direct service connection, which as outlined above, is denied in this decision for lack of in-service incurrence, with the question of nexus not being reached. The examinations relied upon in this decision were all from different examiners than the October 2015 decision. Veteran’s Arguments In a November 2020 brief, the Veteran’s representatives repeated the orders from CAVC, and so those arguments have been addressed in the above section. In a February 2021 brief, the Veteran’s representatives argue that the January 2021 VA examination was inadequate for failure to consider two pieces of evidence in the record: specifically, a DBQ filled by a Dr. Boutin dated October 9, 2019 and private treatment records from Dr. Zanchi from December 2014. This argument is not warranted as the VA examiner noted review of the record, and the report reflects accurate factual assumptions, and opinions supported by a rationale. Nothing in the January 2021 VA examination states that certain evidence was not considered. The January 2021 examiner came to a different conclusion than the private examiners; however, this is not evidence that the VA examiner ignored the evidence in the record where, as here, the report otherwise shows accurate factual assumptions and a rationale consistent with the evidence of record. See Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012) (stating that there is no requirement that medical examiners discuss specific pieces of evidence, but that medical examination reports are adequate when they sufficiently inform the Board of a medical expert’s judgment on a medical question and the essential rationale for that opinion). J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Charles Plambeck 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.