Citation Nr: 21024795 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 14-11 743 DATE: April 26, 2021 ORDER Entitlement to service connection for sleep apnea, to include as secondary to posttraumatic stress disorder (PTSD), is denied. FINDING OF FACT The Veteran’s sleep apnea was not incurred in, and is not etiologically related to, military service and was not caused or aggravated by his service-connected PTSD. CONCLUSION OF LAW The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303, 3.304, 3.310, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1986 to May 1986, from October 1999 to October 2000, from March 2003 to March 2004, from May 2004 to October 2007, from January 2009 to June 2009, and from later that month in June 2009 to June 2010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).   In April 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ); a transcript is of record.     The Board remanded this claim in January 2018 to the agency of original jurisdiction (AOJ) for further development.  The Board’s remand directives have been substantially completed.  See Stegall v. West, 11 Vet. App. 268 (1998).    Entitlement to service connection for sleep apnea, to include as secondary to PTSD. The Veteran asserts that his sleep apnea is related to his active military service, to include his service-connected PTSD. For the reasons that follow, the Board finds that the Veteran’s service connection claim must be denied. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, to establish service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In addition to service connection on a direct basis, service connection may also be granted for a disability that is proximately due to or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995). Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307, so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b). Service connection may be established for chronic diseases manifesting to a compensable degree within a year after service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Turning to the evidence of record, the Board finds that the present disability element for service connection has been established. The Veteran has been diagnosed with obstructive sleep apnea. See February 2012, December 2013, and February 2015 VA examinations. The Board further notes that service connection is not warranted on a direct or secondary basis. The Veteran’s service treatment records (STRs) do not show complaints, treatment or diagnosis related to his sleep apnea. Although the Veteran noted sleep issues in August 2010 on his post-deployment health assessment, he was not diagnosed with sleep apnea until March 2011, after his separation from active duty service. Thus, the Board finds that the second element of service connection is not satisfied. As to the nexus element, the Veteran initially underwent a VA examination for sleep apnea in February 2012. The Veteran reported that his sleep apnea symptoms started in 2009. He reported undergoing a sleep study in March 2011 and currently using a continuous positive airway pressure (CPAP) machine at night. The examiner noted that the Veteran’s sleep apnea has a mild to moderate effect on his physical or sedentary employment. No nexus opinion was provided. The Veteran underwent another examination for his sleep apnea in December 2013. The Veteran reported that he did not have sleep problems prior to his diagnosis of sleep apnea. He also reported being exposed to fine dust particles, burn pits, burning bodies, and burning chemicals during his active duty service in Iraq. The Veteran reported using CPAP nightly and taking sleeping pills or over-the-counter melatonin. He reported getting a good night’s sleep at most two days out of the week, which affects his ability to function during the day. The examiner opined that the Veteran’s condition was at least as likely as not incurred in or caused by the claimed in-service injury, event or illness. The examiner based this opinion on the fact that the Veteran separated from active duty military service on June 30, 2010 and his sleep apnea was diagnosed on March 14, 2011, within one year of discharge from military service. The Board notes that sleep apnea is not an enumerated chronic disease subject to presumption under 38 C.F.R. § 3.307. See 38 C.F.R. § 3.309(a). Subsequently, the examiner issued an addendum opinion stating that the Veteran’s sleep apnea was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner based this opinion on the fact that while the Veteran was exposed to dust particles and other chemicals during his active duty service in Iraq, most studies related such an exposure to respiratory and cardiovascular health effects. The examiner noted that the Veteran has not been diagnosed with an intrinsic lung or upper airway condition. The examiner further explained that obstructive sleep apnea is characterized by recurrent collapse of the pharyngeal airway during sleep, which is influenced by a combination of factors, including upper airway anatomy, arousal threshold, body habitus, and stability of the respiratory control system. The examiner added that risk factors for sleep apnea include advancing age, male gender, obesity, and craniofacial or upper airway soft tissue abnormalities. Based on the foregoing, the examiner concluded that the Veteran’s sleep apnea is less likely than not incurred in or caused by exposure to smoke and dirty air during his deployment in Iraq for 9 months in 2009 and 2010. The Veteran underwent another examination for his sleep apnea in February 2015. At the examination, the Veteran reported that he continues to have sleep apnea symptoms and that his condition worsened in the past year. He reported taking melatonin daily and prescription sleep medication on per needed basis. Continuous use of CPAP was noted. The examiner noted that the Veteran’s sleep apnea mildly to moderately impairs his ability to work. No nexus opinion was provided. Pursuant to January 2018 Board’s remand directives, a February 2018 VA addendum opinion was issued to address entitlement to service connection for sleep apnea as secondary to the Veteran’s PTSD. The examiner noted that PTSD is a mental illness and it does not cause or aggravate airway obstruction, which is a pathologic process in sleep apnea. The examiner further noted that the Veteran was discharged from active duty military service in 2010 but he was not diagnosed with sleep apnea until 2011. The examiner explained that sleeping pills prescribed to the Veteran are meant to treat insomnia, not PTSD. The examiner added that the Veteran is overweight, which is the number one cause of sleep apnea. The Board accords great probative weight to the December 2013 and February 2018 VA opinions as the examiners considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed.  The examiners also offered a conclusion with supporting data as well as reasoned medical explanations connecting the two.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  Most importantly, there is no contrary medical opinion of record.  The Board also finds that the medical opinion is consistent with other objective evidence of record, to include the Veteran’s post-service treatment records. See VA and private treatment records. Thus, the Board finds VA opinions probative to address the Veteran’s claim.   The Board acknowledges the Veteran’s assertions that his sleep apnea was caused or aggravated by his service-connected PTSD or related to his military service, including his wife’s statements of him snoring and gasping for air while sleeping since his service. Even though the Veteran is competent to report sleep apnea symptoms, he is not competent to provide a nexus opinion in this case. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Similarly, while the Veteran’s wife is competent to report what she personally observed, she is not competent to offer an opinion to an intricate medical question. Layno v. Brown, 6 Vet. App. 465, 470 (1994); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). As noted, the Board finds the December 2013 and February 2018 VA opinions more probative to address the Veteran’s claim. The Board also acknowledges the Veteran’s contention that he has experienced symptoms of sleep apnea since service, and that his statements, in conjunction with his spouse’s statements, suggest continuity of symptomatology. However, the continuity of symptomatology framework only applies to certain enumerated diseases. See 38 C.F.R. § 3.309(a). Sleep apnea is not one of the enumerated diseases, and thus, the continuity of symptomatology theory of entitlement is not for application. In light of the foregoing, the Board finds that the most competent and probative evidence of record weighs against a finding of service connection for the Veteran’s sleep apnea. As such, service connection is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); Gilbert, supra. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Kuzniar, 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.