Citation Nr: 21025599 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 18-17 640 DATE: April 28, 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 is not secondary to his service-connected PTSD and is not otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for sleep apnea, to include as secondary to service-connected PTSD, have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1963 to June 1965. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in August 2019. A transcript of the hearing is associated with the electronic claims file. The Board issued two prior remands on this claim in November 2019 and December 2020. Service Connection Generally, to establish service connection a Veteran must show: “(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 present disability and the disease or injury incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The evidence must show: (1) that a current disability exists; and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated (worsened in severity beyond its natural progress) by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439, 448–49 (1995).  VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336–37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected PTSD. The Veteran filed an application for service connection for sleep apnea in May 2016. In a letter in support of his claim, the Veteran contended that he was told by VA technicians that “a lot of military people develop sleeping disorders when they are on active duty and it goes hand in hand with PTSD.” Specifically, the Veteran contended that his sleep apnea is related to his active service, beginning while he was deployed in Cuba, or in the alternative that it is secondary to his PTSD. Treatment records also indicated a current diagnosis of obstructive sleep apnea (OSA). Nevertheless, the RO issued a July 2016 rating decision denying service connection for sleep apnea finding no in-service event. The Board notes that at the time the Veteran was not service connected for PTSD. The Veteran appealed this issue up to the Board. In a November 2019 remand, the Board instructed the RO to provide the Veteran with a VA examination for his OSA and to obtain medical opinions regarding whether it may be etiologically related to his active service or his PTSD. The Board notes that the Veteran was granted service connection for PTSD in a December 2019 rating decision, effective March 14, 2017. The Veteran was given a VA examination for his sleep apnea in February 2020. Here, he was again diagnosed with OSA and the examiner noted that the Veteran had underwent gastric bypass surgery after which he lost weight from 320 pounds to 225 pounds. However, the examiner reported that the Veteran was now back up to 280 pounds (BMI 37), with his weight also fluctuating since a diagnosis of cancer a couple of years ago. The examiner opined that the Veteran’s OSA was less likely than not related to his active service. Specifically, the examiner explained that temporary sleep deprivation during the Veteran’s active service was unlikely to result in a permanent breathing impairment. Moreover, the examiner notes that the Veteran’s service treatment records were “negative for anything pertinent to sleep apnea.” With regard to secondary service connection, the examiner also opined that it was less likely than not that the Veteran’s OSA was proximately due to or the result of his service-connected PTSD. As rationale for this opinion, the examiner wrote “PTSD is not a risk factor for sleep apnea and would not be expected to affect his respiratory function while sleeping. Similarly his treatment with escitalopram and hydroxyzine would not cause sleep apnea or respiratory depression. OSA is multifactorial – he has known risk factors, including obesity, advanced age, hypertension and male gender. To illustrate the dominant influence of obesity on OSA, one study (Am Surg. 2008 Sep;74(9):834-8) reported a prevalence of sleep apnea of 74% in those with BMI of 40-49 (his BMI was 45 pre-bariatric surgery) and 71% in those with BMI 35-39 (his BMI is currently 37). Although it’s likely the severity of his OSA was reduced after bariatric surgery, it would not be expected to go away.” Finally, with regard to aggravation, the examiner opined that it was less likely than not that the Veteran’s service-connected PTSD aggravated his OSA beyond its natural progression. In support of this opinion, the examiner again noted “Neither PTSD nor escitalopram treatment should impair his respiratory function while sleeping and would not be expected to aggravate sleep apnea. He takes hydroxyzine to help him sleep. Clinically significant respiratory depression has not been reported at recommended doses, so this is unlikely to aggravate sleep apnea.” The Board finds these opinions to be well-reasoned and consistent with the record, entitling them to significant weight. Following the February 2020 VA opinion, additional relevant evidence was associated with the claims file, including an affidavit from the Veteran, a statement from his wife, and medical literature regarding the relationship between OSA and PTSD. Thus, the Board again remanded the claim in December 2020 to obtain an addendum opinion. In January 2021 an addendum opinion from the February 2020 examiner was obtained, and in February 2021 an addendum to the January 2021 opinion was also obtained. The Board finds these opinions to be both well-reasoned and thorough, and also finds that they addressed all the questions posed on remand. Specifically, the examiner opined that it was less likely than not that the Veteran’s sleep apnea was incurred in or caused by his active service. As rationale for this opinion she provided “Veteran’s affidavit reports nonspecific symptoms relating to poor sleep quality dating back to his time in service. The cause is not known definitely but the long-term symptoms he reported to primary care were not suggestive of sleep apnea. He was diagnosed with OSA (mild in severity) decades later after becoming very obese. Most likely, the OSA is not the cause of his nonspecific sleep symptoms as a young man in the 1960s. His wife’s statement states he returned from service with restlessness during sleep and snoring (he left service in 1965). He was diagnosed with mild OSA approximately 40 years later, at which time he had become very obese. Snoring and restlessness are not diagnostic of sleep apnea. It’s more likely that his sleep apnea developed as a result of aging and weight gain.” Next, the examiner opined that it was less likely than not that the Veteran’s OSA was caused or aggravated by his service-connected PTSD. As rationale for her opinion the examiner provided “affidavit from Veteran and statement from wife reviewed, and do not alter my previous opinion, since PTSD is not a known risk factor for sleep apnea, and would not be expected to affect his respiratory function while sleeping. Hence, sleep apnea would not be cause or aggravated by PTSD.” The examiner then goes on to note that December 2018 progress notes mention that the Veteran has a long history of sleep trouble “for the past 50 years, he has not been able to shut down his mind at night” which the examiner found to be more suggestive of a mental health cause of sleep complaints, rather than OSA. She noted additional progress notes from December 2017 that describe the Veteran’s use of alcohol and overeating to address his PTSD symptoms, which she found did not “support PTSD (apart from obesity) as a casual factor for sleep apnea.” The examiner then opined that it was less likely than not that the Veteran’s PTSD caused him to become obese or aggravated his obesity and thus, PTSD-caused or aggravated obesity was not a substantial factor in causing his OSA. She wrote that the Veteran’s affidavit and his wife’s statement did not provide any support for this claim and “The designated progress notes also do not. Most of the progress notes did not make any statements that specifically support a relationship of his obesity to PTSD, although he mentioned at one time that stress symptoms led him to eat more. The medical literature notes an association between depression and obesity (in both ‘directions’, i.e., depressed people have more OSA, and those with OSA have more depression). The mechanism is not clear and a casual relationship has not been established, but this association has been repeatedly shown. The relationship of PTSD obesity specifically is less established.” The Board notes that at his October 2019 VA examination for PTSD that the Veteran was only diagnosed with PTSD, no separate diagnosis of depression was made. Finally, the examiner opined that it was less likely than not that the Veteran’s OSA would not have occurred but for obesity caused or aggravated by his service-connected PTSD. In support of this opinion the examiner wrote “It is likely that, since the OSA was mild in 2003 at a time that he was morbidly obese with BMI of 45, he would not have had sleep apnea if his BMI was normal. To the extent that PTSD and depression have contributed to his weight gain (which is unknown), there is no causal relationship established between depression and obesity; it is an association.” In February 2021 the examiner provided an addendum opinion discussing the medical literature provided by the Veteran in support of his claim. She wrote “Yes I did review that article, in which they conclude that those with PTSD have higher rates of screening as “high risk” for PTSD [sic] than those in community settings. My concern is – the most powerful association of (obstructive sleep apnea) OSA was with BMI (weight), but it doesn’t appear that they did a logistic regression analysis for BMI. So it was hard [sic] draw any firm conclusions. I reviewed another article Obstructive Sleep Apnea and Psychiatric Disorder: A Systemic Review, J Clinical Sleep Medicine 11(2); 165-175 2015 which concluded that the results of this systemic review point to ‘limited evidence that OSA may be elevated in MDD and PTSD.’ In summary this (the relationship between PTSD and OSA) has been a topic of much controversy and no clear answers. The two conditions ‘may be’ related, based on a handful of studies that are not definitive. Is this level of proof ‘at least as likely as not’? In my opinion, it is not. Standard sources of accepted medical knowledge, such as Medscape and Mayo Clinic, do not list PTSD among the many risk factors (obesity and alcohol use among them) for obstructive sleep apnea. So I would continue to opine that it is less likely than not that PTSD itself (apart from any alcohol use or obesity) is the cause of or aggravator or [sic] obstructive sleep apnea.” The Board assigns significant probative weight to these opinions, as they are consistent with the record, well-reasoned, and very thorough. Neither the Veteran nor his representative has provided any additional evidence in support of this claim. Moreover, the record does not contain any positive nexus opinions. The Board recognizes that there are instances in which a layperson may be competent to offer testimony on medical matters, such as describing symptoms observable to the naked eye or even diagnosing simple conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds, however, that the questions posed by this claim are of such complexity as to require that individuals who provide competent medical evidence on these matters possess a level of expertise that a layperson simply does not possess. Accordingly, entitlement to service connection for sleep apnea, to include as secondary to service-connected PTSD, is denied. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Ruiz, 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.