Citation Nr: 21023880 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 13-26 382 DATE: April 21, 2021 ORDER Entitlement to service connection for sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD), is denied. FINDING OF FACT The Veteran’s sleep apnea did not manifest in service and is not otherwise related to a period of qualifying service, nor to a service-connected disability. CONCLUSION OF LAW The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 101, 1110; 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the North Carolina Army National Guard from 1994 to 2005, which included a period of initial active duty for training from June 1995 to December 1995. He was also ordered to active duty in support of Operation Iraqi Freedom from October 2003 to February 2005. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veterans Affairs (VA). The Board remanded the case for further development in 2014, 2015, 2016, and 2017. In a February 2019 decision, the Board denied the claim. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2020 memorandum decision, the Court vacated the Board’s decision and remanded the case to the Board. The Board then remanded the case in November 2020 for action consistent with the memorandum decision. The requested development was completed, and the case has since returned to the Board for appellate review. Although evidence was added to the claims file after the February 2021 Supplemental Statement of the Case (SSOC) on this claim, it is neither relevant nor new, so no additional due process is needed. The February 2021 PTSD examination had no information concerning sleep apnea, and to the extent it noted sleep disturbances, such as restless sleep or difficulty falling or staying asleep, as a symptom of PTSD, that information is not new and is discussed below as shown in prior evidence. The VA records associated with the file in March 2021 did not contain any new records than those considered in the SSOC. Therefore, there is no need to solicit waiver of RO consideration or return the case to the RO for issuance of another SSOC, as no new, relevant evidence has been received since the last SSOC. Initially, the Board finds that VA’s duty to assist has been met as to obtaining any available service records. The agency of original jurisdiction (AOJ) determined that the Veteran’s service treatment records were unavailable after exhaustive attempts to locate them, as documented in a May 2006 VA memorandum. Nevertheless, the Board also observes that the service personnel records file received from the Veteran’s unit does contain some service treatment records. A February 2006 telephone call with the AOJ prior to receiving those records reflects that the unit representative believed the Veteran had the original service treatment records because the unit just had the 201 (service personnel records) file. The unit representative indicated that all of the records on file with the unit would be sent. The Veteran did not respond to the May 2006 AOJ letter requesting copies of any service treatment records in his possession. To the extent that the service treatment records remain incomplete, the Board has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. See O’Hare v. Derwinski, 1 Vet. App. 365 (1991). This consideration does not lower the legal standard for proving a claim for service connection, but rather, increases the Board’s obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. Russo v. Brown, 9 Vet. App. 46 (1996). The Board also finds that VA’s duty to assist has been met as to obtaining a VA examination or medical opinion. The case was returned by the Court for the Board to request an additional VA medical opinion consistent with the original request in the 2017 remand. The December 2020/February 2021 VA examiner addressed the outstanding request in this regard. The Veteran has not raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. Service connection may also 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). A veteran is a person who served in the active military, naval, or air service and who was discharged or released under conditions other than dishonorable. 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). The term “active military, naval, or air service” includes active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 U.S.C. § 101(24); 38 C.F.R. §§ 3.6(a)-(d). The disorder at issue is not considered a chronic disease for VA compensation purposes. As such, the provisions of 38 C.F.R. § 3.303(b) for chronic diseases are not for potential consideration in this case. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that service connection is not warranted for sleep apnea. The Veteran has clarified that he is seeking service connection for sleep apnea as secondary to his service-connected PTSD. See November 2019 Court informal brief. The post-service evidence shows that the Veteran had an initial diagnosis of sleep apnea based on a 2009 sleep study that existed into the appeal period and later resolved. See, e.g., VA treatment records from June 2009 (Veteran requested sleep study to rule out sleep apnea; noted that he reported loud snoring and difficulty staying awake during the day with eight hours of sleep, did work nights), February 2011 (CPAP issued), and March 2020 (current assessment/plan on routine appointment with various disorders other than sleep apnea, including PTSD); VA examination reports from September 2015 and April 2016 (diagnosis history including notation of resolution based on 2015 sleep study results); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (requirement of current disability satisfied when claimant has a disability at the time a claim for VA disability compensation is filed or at any point during pendency of that claim). The post-service evidence also shows that he has reported PTSD-related sleep impairment. See, e.g., private treatment records from April 2005 to July 2006 and August 2010 VA PTSD examination report (historical reports); December 2015 VA PTSD examination report (noted chronic sleep impairment as a symptom, sleeping about five or six hours daily). The Board notes that the Veteran is competent to report observable symptomatology and events, such as sleep issues. Nevertheless, the Board finds that his sleep apnea did not manifest in service. The available service treatment records show that the Veteran’s relevant body systems were found to be normal on examinations, and he denied having a history of relevant symptoms. See, e.g., November 2001 retention examination report and report of medical history; March 2002, November 2002, and August 2003 annual medical certificates; October 2003 pre-deployment health assessment. In addition, the September 2015 VA examiner noted that she reviewed December 2004 and January 2005 post-deployment health assessments where the Veteran did request referral for stress reaction, but he denied both still feeling tired after sleeping and difficulty breathing. The August 2010 VA PTSD examiner noted the information as from the December 2004 post-deployment health assessment, as well as the Veteran’s report that his PTSD signs started in relation to his deployment. These reports are not contained in the record before the Board; the Veteran had an opportunity to provide copies of them to the AOJ, as noted above. In any event, the relevant information noted would not be favorable evidence to this claim. Similarly, the Veteran filed an original compensation claim in June 2005, the same month that his National Guard discharge orders were effective, in which he claimed service connection only for PTSD. He requested sleep apnea testing four years later, then filed the current (first) claim for the disorder in 2011. During his June 2006 VA appointment to establish care, he reported back problems and a medical history of PTSD and depression without complaints referrable to sleep apnea. The September 2015 VA examination report shows that the Veteran also denied witnessed apneas by family members with whom he lived at that time. These considerations weigh against a contention of an in-service onset of the disorder during active duty service along with the onset of PTSD difficulties or ongoing symptoms thereafter, to the extent the Veteran maintains such a contention. In addition to the lack of evidence showing that sleep apnea manifested in service or within close proximity thereto, the weight of the evidence of record does not relate the current disorder to the Veteran’s military service or his service-connected PTSD. The private treatment records noted above and the VA PTSD examination reports do show that the Veteran experiences sleep impairment, but the treatment provider and examiners found that to be a symptom of his mental health problems. The June 2009 VA treatment record for the Veteran’s initial appointment also shows that he had difficulty staying awake during the day with eight hours of sleep in the context of working nights. The Veteran submitted an August 2008 written statement from Dr. H.J. along with an internet article in support of his claim. That submission appears to have been an attachment to his February 2012 notice of disagreement. He was also provided VA examinations in September 2015 and April 2016, and other VA medical opinions were provided in July 2014, October 2017, December 2020, and February 2021. In the August 2008 written statement, Dr. H.J. noted that PTSD might not cause sleep apnea, but it might exacerbate the symptoms because there are more rapid eye movement (REM) sleeps in PTSD and because the apnea episodes happen during the REM sleep to due to the decrease in the muscle tone in the airway. The internet article suggests that people with PTSD might be more likely to develop sleep apnea. This submission did trigger VA’s duty to assist in this case based on the possible association, resulting in the Board first remanding for a VA examination in 2014. However, there is no evidence of record showing that the general statements apply to the Veteran’s specific case. See Sacks v. West, 11 Vet. App. 314, 317 (1998) (“This is not to say that medical article and treatise evidence are irrelevant or unimportant; they can provide important support when combined with an opinion of a medical professional.”). The September 2015 VA examiner noted a history of relevant information, including the post-deployment health assessment findings and history of post-service sleep apnea testing, but she did not provide a complete etiology opinion. Rather, she simply noted that the Veteran did not have a current diagnosis based on the most recent testing results. In response to the Board’s request for an addendum opinion addressing Dr. H.J’s written statement, the October 2017 VA examiner (the same examiner from April 2016) indicated that she could not provide such an opinion because she could not locate the document in the claims file. In summary, the Board finds that these medical opinions are not adequate to decide the case for the reasons outlined above. See also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The July 2014 VA examiner determined that the claimed sleep apnea was less likely than not proximately due to, the result of, or aggravated by the service-connected PTSD. In so finding, she noted that the predominance of medical literature does not suggest that sleep apnea is caused by PTSD, and that sleep apnea is related to a mechanical mechanism of airway obstruction, not a neuropsychic or neuro behavioral mechanism. In addition, the examiner noted that the Veteran’s baseline level of severity of sleep apnea was shown to be mild on the 2009 sleep study, and the record did not contain any evidence documenting any increased level of severity in the disorder. The April 2016 VA examiner determined that the claimed sleep apnea was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In so finding, she noted that the Veteran did not have a diagnosis of sleep apnea until four years after active service, and there was no evidence of ongoing symptoms upon which to confer a nexus when considering both sleep studies. The examiner also determined that the Veteran’s sleep apnea was not caused by or aggravated by his PTSD. She noted consideration of the internet article the Veteran submitted, but also referenced the portion of the study that noted that longitudinal studies were needed to establish a conclusive connection. In addition, she noted that sleep apnea is a mechanical process. The examiner also noted that the fact that the 2015 sleep study showed findings not consistent with sleep apnea supported possible improvement in the Veteran’s risk factors. The December 2020/February 2021 VA examiner determined that the claimed sleep apnea was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner also determined that the claimed sleep apnea was less likely than not proximately due to, the result of, or aggravated by the service-connected PTSD. In so finding, he explained that there was no evidence to support sleep apnea arising while in service or in close proximity thereto. The examiner noted that Dr. H.J. made broad, general comments in 2008 about worsening of sleep apnea based on REM changes and sleep disturbances that were non-specific to the Veteran’s circumstances and were dated prior to his diagnosis. Regarding this Veteran, the examiner noted that certain measurements on the 2015 sleep study were lower than related measurements on the earlier sleep study, with the 2015 diagnosis of primary snoring replacing the sleep apnea diagnosis. He noted that the resolution of the disorder supported a finding of no aggravation. In addition, the examiner explained that PTSD, related psychological comorbidities, and medications used to treat the conditions unequivocally do not cause sleep apnea, given established medical knowledge and practice. Rather, he noted that the mechanism of sleep apnea is upper airway obstruction with associated apneic episodes with no physiologic or anatomic mechanism by which psychological conditions can do so. The examiner indicated that that, although not specifically requested in the opinion, medications used to treat psychological comorbidities do not cause or aggravate sleep apnea. He further indicated that psychological conditions do have associated sleep disorders, which are mediated through the central nervous system (CNS), including insomnia and generalized symptoms such as easy awakening, difficulty falling asleep, fitful sleep, movements during sleep, daytime somnolence and fatigue, gasping, etc., which are nonspecific and do not establish a diagnosis of or independently cause sleep apnea. Regarding the Veteran, he noted that there was no evidence of aggravation of his mild sleep apnea beyond its normal course when looking at the sleep study results and baseline CPAP settings. In addition, he noted that adjustment of CPAP is common throughout the course of the condition and is related to age and other factors. The 2014, 2016, and 2020/2021 VA examiners’ opinions are highly probative, taken together, as they are based on a review of the claims file and are supported by rationale. The 2020/2021 VA examiner reached the same outcome as the 2014 and 2016 examiners after considering the complete history, and his determinations are also highly probative on their own. There is no opinion to the contrary addressing the Veteran’s specific case. The Board has considered the Veteran’s statements. Although lay persons are competent to provide opinions on some medical issues, as to the specific issues in this case, the etiology of the disease and any relationship to PTSD falls outside the realm of common knowledge of a lay person, particularly in light of the delayed onset and the internal processes involved. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Moreover, even assuming that the Veteran is competent to opine on these medical matters, the Board finds that the VA examiners’ opinions are more probative, as they were provided by medical professionals with knowledge, training, and expertise and are supported by rationale. The VA examiners reviewed the claims file, and the 2020/2021 VA examiner considered the complete reported history and lay statements. In addition, the Board acknowledges the Veteran's references to prior Board decisions for other claimants with an outcome consistent with the benefit he is seeking (see November 2019 Court informal brief); however, those decisions are not precedential and do not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303. Moreover, as a point of clarification, the cited cases also appear to be based on medical opinions provided that were specific to those claimants’ cases. Based on the foregoing, the Board finds that the weight of the evidence is against the Veteran’s claim. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Postek, 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.