Citation Nr: 21023918 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 17-62 435A DATE: April 21, 2021 ORDER Service connection for obstructive sleep apnea is denied. FINDINGS OF FACT 1. The Veteran has a diagnosis of obstructive sleep apnea. 2. There is no injury, disease, or event related to obstructive sleep apnea during service. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant, had active duty service from March 1981 to July 1996. The instant case is on appeal from a Department of Veterans Affairs (VA) Regional Office (RO) rating decision that denied service connection for obstructive sleep apnea. The Veteran testified at a November 2020 Board of Veterans’ Appeals (Board) hearing. The hearing transcript has been associated with the claims file. Service Connection for Obstructive Sleep Apnea Service connection can be granted for a disability resulting from a 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 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). Service connection generally requires (1) competent evidence of a current disability; 2) medical or, in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and 3) competent evidence of a nexus between the claimed in-service disease or injury and the current disability. The Veteran has claimed service connection for obstructive sleep apnea. He asserted in the December 2017 VA Form 9 and the June 2015 Notice of Disagreement that the obstructive sleep apnea was related to teeth grinding, which occurred during service. During the November 2020 Board hearing, he asserted that the service-connected anxiety disorder associated with tinnitus (anxiety) was causing sleep problems. The Veteran has a current obstructive sleep apnea diagnosis, initially diagnosed in January 2014, approximately 18 years after service separation. See October 2018 VA Sleep Apnea Examination (providing the history of the diagnosis). The present disability requirement is met. After a review of all the evidence, lay and medical, the Board finds that the weight of the evidence shows no relevant injury, disease, or event during service. Concerning teeth grinding, as the Veteran asserted, the record does demonstrate that there was teeth grinding during service. See January 1995 Service Treatment Record. One of the records reference a sleep disturbance, but they do not reference sleep apnea, a respiratory problem. The reference to sleep problems is simply a description of the sleep interruptions caused by the service-connected anxiety disorder, a symptom for which the Veteran is already being compensated as part of the service-connected psychiatric disorder, and is not a description of a sleep apnea symptoms. See 38 C.F.R. §§ 4.14, 4.130 (providing a 30 percent disability rating for “chronic sleep impairment”). While the facts do not establish that there was grinding of the teeth during service, even if this fact were established, pathophysiologically, grinding of the teeth is not a sleep apnea symptoms and the presence of such symptom has no tendency to suggest the presence of sleep apnea or sleep apnea symptoms. Moreover, even if grinding of the teeth occurred during service, there is also medical opinion evidence that the sleep apnea is not related to teeth grinding. In February 2019, a VA examiner opined that the obstructive sleep apnea was less likely than not incurred in or caused by the claimed in-service grinding of teeth. The VA examiner reasoned that “obstructive sleep apnea is characterized by recurrent collapse of the velopharyngeal and/or oropharyngeal airway during sleep, resulting in substantially reduced or complete cessation of airflow despite ongoing breathing efforts. This pathophysiologic mechanism is distinct from the pathophysiology of grinding of teeth. Using up to date to review the medical literature, a cause and effect relationship [has] not been established between sleep apnea and grinding of teeth.” There are a few mentions of sleep problems in the service treatment records. One was a January 1995 ear, nose, and throat specialist request by audiology because the Veteran was complaining of tinnitus and a sleep disturbance and decreased concentration was noted. A second was a February 1995 suggestion that the Veteran could use valerian root. A third was a March 1995 note from psychiatry that the Veteran was sleeping better. The reference to sleep problems is simply a description of the sleep interruptions caused by the service-connected anxiety disorder, a symptom for which the Veteran is already being compensated as part of the service-connected psychiatric disorder, and is not a description of a sleep apnea symptoms. See 38 C.F.R. §§ 4.14, 4.130. The Veteran indicated frequent trouble sleeping in a December 1995 Report of Medical History. There was no elaboration on this statement. The Veteran mentioned at the November 2020 Board hearing that he thought the problems started with an incident where he was told to wear a mask and where he accidentally fell asleep with his arm over the mask, blocking the air flow. This is a description of the anxiety, for which the Veteran is service connected and being compensated, and which causes chronic sleep impairment, for which the Veteran is specifically being compensated as part of the anxiety disorder. The Veteran did not mention how this event with the mask may have started the obstructive sleep apnea or indicate some suggestion of sleep apnea during service. The Veteran testified that his sleep problems in service were that he would wake up several times in the night, would be wide awake, and would take a little while to get back to sleep. He would feel out of breath because he was startled and disoriented. He had not been told by people that he would stop breathing in his sleep and he was not told by a doctor that sleep apnea is due to service. All of these mentions of sleep—by the Veteran and in the service treatment records—concerned sleep generally, not sleep apnea, a respiratory disorder, and show that the sleep is a symptoms of the service-connected anxiety disorder, which began during service and cause sleep symptoms during service, and for which the Veteran is being compensated as part of the service-connected anxiety disorder. The service treatment records were complete and document consistent medical treatment. The records include treatment for musculoskeletal pain and symptoms (right forearm injury, ankle pain, wrist sprain, sprained index finger, foot injury, left knee sprain, calf pain, shoulder injury, injured toe), audiology problems (tinnitus, high frequency sensorineural hearing loss that led to a profile), a dental abscess, a phobia when wearing a mask, and a variety of infections and illnesses (sinus infection, cold symptoms, bronchitis, upper respiratory infection, diarrhea, viral syndrome, herpes simplex, and viral gastroenteritis). Obstructive sleep apnea symptoms would be included in the medical records had the symptoms occurred. Accordingly, the evidence shows no in-service sleep apnea injury or disease during service. See 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) (citing Fed. R. Evid. 803(7) for the proposition that the absence of an entry in a record may be evidence against the existence of a fact that would ordinarily be recorded). As the weight of the evidence is against an in-service injury, disease, or event, service connection on a direct basis must be denied. In September 2019, during the development of the case, the RO asked a doctor for an opinion on whether the Veteran’s service-connected tinnitus could be causing the obstructive sleep apnea, but the doctor felt that she was not able to give an opinion because she was not an audiologist In is unclear why this question was asked of the doctor because neither the Veteran nor the evidence has raised this secondary service connection theory. At the November 2020 Board hearing, the representative stated that the Veteran mentioned in service that his tinnitus interferes with his sleep, and speculated that the issues somehow may all be interconnected (suggesting that the service-connected anxiety might be related, which is discussed next). As stated previously, this reference to sleep problems does not pertain to sleep apnea symptoms. The statement could be liberally construed as an assertion that tinnitus interfered with sleep, that tinnitus caused anxiety or interfered with sleep to cause anxiety, and that sleep interference symptoms began during service due either to tinnitus or anxiety. None of those assertions suggest an association between sleep apnea and tinnitus. Because there is not an assertion that the obstructive sleep apnea is secondary to tinnitus, and no competent evidence suggesting such a relationship, the theory of service connection for sleep apnea as secondary to the service-connected tinnitus in fact has not been raised. Consequently, there was no duty to assist by obtaining such secondary service connection opinion with respect to tinnitus. The Veteran is also service connected for anxiety disorder associated with tinnitus (also known as anxiety disorder due to tinnitus). The representative appears to have suggested that the service-connected anxiety disorder is causing or aggravating the obstructive sleep apnea. The evidence and adjudications in this case show that anxiety is causing chronic sleep impairment, which is a psychiatric symptom for which the Veteran is being compensated as part of the rating for the service-connected anxiety disorder. See June 2019 VA Examination (stating that the Veteran is dealing with assorted symptoms to include insomnia and takes medication for sleep); 38 C.F.R. §§ 4.14, 4.130. The representative did not suggest how a psychological disorder of anxiety might be causing a physical (respiratory) disorder. Although the representative stated that a secondary service connection opinion needed to be obtained, the request does not meet the duty to assist standard for when such opinions are warranted as the requestion does not assert that the sleep apnea may be associated with the service-connected anxiety. An opinion is warranted “if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but…[i]ndicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability.” See 38 C.F.R. § 3.159(b)(4)(i)(C) (emphasis added). “Paragraph (4)(i)(C) could be satisfied by competent evidence showing post-service treatment for a condition or other possible association with military service.” See 38 C.F.R. § 3.159(b)(4)(ii). This is a very low threshold and does not require medical evidence—only competent evidence—but even a lay assertion as in this case must assert the association or how such association “may” happen. In this case, the contentions and evidence of record, even liberally construed, do not facially assert how a psychological disorder could act on an entirely different body system (respiratory system). Accordingly, a nexus opinion is not warranted. As the weight of the evidence shows no relevant in-service injury, disease, or event to which the current sleep apnea could be related, the Veteran has not raised an actual claim of secondary service connection, and the described sleep symptoms are already compensated as part of the service-connected anxiety disability, the appeal for service connection for obstructive sleep apnea must be denied. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Smith, 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.