Citation Nr: 21026576 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 16-14 376 DATE: May 3, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected residuals of a fractured jaw, including bilateral condylar heads of the mandible (residuals of a fractured jaw) and service-connected posttraumatic stress disorder (PTSD) with alcohol use disorder is denied. FINDING OF FACT The preponderance of the evidence of record is against finding that that diagnosed OSA is due to a disease or injury incurred in service, or is caused or aggravated by service-connected residuals of a fractured jaw or service-connected PTSD with alcohol use disorder. CONCLUSION OF LAW The criteria for service connection for OSA, to include as secondary to service-connected residuals of a fractured jaw and PTSD with alcohol use disorder, have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1963 to October 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In a January 2019 decision, the Board granted service connection for a dental disability consisting of loss of all upper and lower teeth, for compensation purposes, but denied an effective date earlier than February 6, 2015, for a 70% rating for service-connected PTSD, and denied entitlement to service connection for OSA. A claim for service connection for a right knee disability was remanded. The Veteran appealed the January 2019 Board denial of service connection for OSA to the United States Court of Appeals for Veterans Claims (Court) which, in June 2020, granted a Joint Motion for Partial Remand (JMPR), and vacated that portion of the January 2019 Board decision that denied service connection for OSA and remanded that issue further action consistent with the JMPR. A June 2020 rating decision granted service connection for a right knee disability; representing a full grant of the benefit sought on appeal. The issue of entitlement to an effective date earlier than June 30, 2017, for the award of a total disability rating based on unemployability due to service-connected disorders (TDIU rating) was remanded by the Board in a separate July 2020 decision. In November 2020 the Board remanded the claim for service connection for OSA for further development in accordance with the JMPR. At that time, it was noted that the claim for an earlier effective date for a TDIU rating was still under development and had not been re-certified nor activated to the Board and, so, that issue was not before the Board. Shortly thereafter, a November 2020 rating decision granted an earlier effective date for the TIDU rating; granted special monthly compensation (SMC) based on housebound (HB) criteria being met, and granted an earlier effective date for eligibility to Dependents' Educational Assistance (DEA) under 38 U.S.C. chapter 35, all effective as of February 6, 2015; representing a full grant of the benefits sought on appeal. In this case the JMPR found that the 2016 VA medical opinion was inadequate because it provided no rationale for concluding that the service-connected residuals of a fracture jaw did not cause OSA and did not opine as to whether the service-connected residuals of a fracture jaw aggravated the claimed OSA. It was for this reason that the case was remanded in November 2020 and that additional opinions were obtained in January 2021, with an addendum in February 2021. These opinions addressed those very matters, and additionally addressed whether the service-connected PTSD with alcohol use disorder caused or aggravated the claimed OSA. Those medical opinions were rendered after a review of the records and an interview of the Veteran, and addressed the lay evidence of continuity of symptomatology. These opinions are reasoned medical judgments connecting the correct facts and the conclusion reached. Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012). A VA medical opinion is adequate if it (1) is based on consideration of the veteran's prior medical history, (2) describes the disability in sufficient detail so that the Board's evaluation is a fully informed one, and (3) is supported by a rationale that the Board can consider and weight against contrary opinions, if any. Ardison v. Brown, 6 Vet. App. 405, 407 (1994); Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Consequently, the Board finds that the opinions rendered in January 2021 and the addendum in February 2021 are adequate for adjudication of the claim and that there has been substantial compliance with the JMPR and November 2020 Board remand. See Stegall v. West, 11 Vet. App. 268 (1998). Service connection for OSA, to include as secondary to service-connected residuals of a fractured jaw, including bilateral condylar heads of the mandible (residuals of a fractured jaw) and service-connected PTSD with alcohol use disorder Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in- service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d). Service connection will be granted on a secondary basis for disability that is proximately due to or the result of, or permanently aggravated by, an already service-connected condition. 38 C.F.R. § 3.310(a) and (b). This requires (1) evidence of a current disability; (2) a service-connected disability; and (3) evidence establishing a nexus between the service-connected disability and the claimed disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). As to lay evidence, a layperson is competent to describe symptoms and readily observable disorders but does not have the education, training or expertise to formulate a competent medical opinion linking matters which are of a complex medical nature and beyond the ken laypersons and which cannot diagnosed based on observation or analysis of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372 (2007); see also Davidson v. Shinseki, 581 F.3d 1313, 1316. Reasonable doubt will be favorably resolved but if the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1365-66 (Fed. Cir. 2001). The Veteran contends that service connection is warranted for OSA because the disability resulted from same injury during service which caused his now his service-connected residuals of a fractured jaw; is caused or aggravated by service-connected residuals of a fractured jaw, or his service-connected PTSD with alcohol use disorder. The medical evidence of record demonstrates that the Veteran has a current diagnosis of OSA and, thus, a current disability has been established. However, the Board finds that the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. With respect to the contention that the claimed OSA manifested during active service as a result of the injury that caused the service-connected residuals of a fractured jaw, including bilateral condylar heads of the mandible, there is no corroboration of the Veteran having any signs or symptoms of OSA during active service contained in service treatment records (STRs). Specifically, the Veteran's July 1963 entrance examination and report of medical history do not note any trouble sleeping, or any other respiratory conditions. Further, there are no reports of, or treatment for, any of these issues in his service treatment records. No sleeping or respiratory issues noted on his October 1966 separation examination, and at that time he did not note any of these issues in his separation report of medical history. The Veteran's wife has stated that he had snored since his military service. See the December 2018 statement the Veteran wife. While lay persons are competent to describe observable symptomology (e.g. pain), a lay person is not competent to opine on the etiology of such symptoms given that the Veteran's OSA is not otherwise shown to have existed during service and because a layperson lacks the requisite medical expertise to formulate a medical opinion on whether the conditions had its onset in service or is related to an in-service injury or disease. Such matters are complex medical determinations beyond the range of experience or understanding of the lay person that cannot be answered based on observation or analysis of the lay person. Rather, the Veteran's OSA is an intricate and complex matter that requires specialized medical education and knowledge, separate from the training, education, or knowledge of a lay person, regarding the unseen and complex processes of the development of respiratory disabilities. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (although it is error to categorically reject a non-expert opinion as to etiology, or nexus, not all questions of nexus are subject to non-expert opinion; whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case). Therefore, the Board finds that the opinions of the Veteran and his spouse have no probative value in this matter. The report of continuity of symptomatology, i.e., the Veteran's snoring, is inconsistent with the remaining evidence of record. Again, service treatment records, including the service examination upon discharge, are silent with respect to any complaints orf findings pertaining to OSA. Also, on VA examination in July 1967, for his jaw fracture, no significant abnormality of his respiratory system was found, and he had no respiratory complaints. Significantly, OSA was not diagnosed until a polysomnography in June 2010, which yielded diagnoses of OSA, snoring, and obesity, and at the May 2016 official examination the Veteran reported that his sleep apnea symptoms began in 2010. Consequently, the Board finds the statements of the Veteran and his spouse to be lacking in credibility as they are inconsistent with other evidence of record. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). In an attachment to the Veteran's July 2016 VA Form 9, Appeal to the Board, he reported that he had been told by an oral surgeon that his sleep apnea could be due to inservice fractures of the mandibles causing significant damage to his nerve around that nasal cavity. In this regard, lay evidence can be competent and sufficient to establish a diagnosis where the layperson is competent to identify the medical condition, is reporting a contemporaneous medical diagnosis, or describes symptoms that support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, this does not mean that in adjudicating a claim that a layperson's statements of what he or she was told by medical personnel must be blindly accepted as true. While the holding in Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) that "the connection between what a physician said and the layman's account of what he purportedly said, filtered as it [is] through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute 'medical' evidence" is no longer binding in light of the holding in Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) and Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), the reasoning in Washington, Id. at 368, is persuasive particularly in circumstances in which the layperson is reciting matters of a complex medical nature which was reportedly told to him or her many years earlier. See also Smith v. Derwinski, 2 Vet. App. 137, 140 (1992) (VA "is not required to accept every bald assertion [] as to service connection or aggravation of a disability."). The Veteran and his attorney have had the opportunity to obtain corroborating statements from the medical professionals that putatively rendered favorable, but verbal, medical opinions. Despite this opportunity, no such corroborating statements, reports or medical opinions have been submitted. This must be weight against the written medical opinions which are actually of record. Unfortunately, all such written medical opinions of record weigh against the claim for service connection. Moreover, as to OSA being of service origin, a February 2021 addendum to the VA medical opinions obtained in January 2021 stated that not only was the October 1966 service separation examination silent for OSA, but OSA was not diagnosed until 2010 and, premised upon this rationale concluded that there was no evidence of OSA in service or within one year of separation and that OSA was not as least as likely as not due to active service. This medical opinion is unrebutted by any competent evidence. Lastly, in a December 2018 statement the Veteran's wife stated that she believed that service connection should be granted because the Veteran had been issued a CPAP machine in 2010 by the Army. However, the source that issues any medical device is not a criterion in adjudicating a claim for entitlement to VA disability compensation. In sum, given the lack of credible evidence of pertinent symptomatology as well as any link between the Veteran's sleep apnea and service, the Board must find that service connection for sleep apnea on a direct basis is not warranted. Further, the Board concludes the preponderance of the evidence is against finding that the Veteran's sleep apnea is proximately due to or the result of, or aggravated by service-connected residuals of a fractured jaw, including bilateral condylar heads of the mandible (residuals of a fractured jaw) and service-connected posttraumatic stress disorder (PTSD) with alcohol use disorder. See Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310 (a). Moreover, the January 2021 examination yielded an opinion that NIH Research indicated a higher prevalence of OSA with mid-facial fractures; however, the jaw is not considered mid-facial. Mayo clinic Research did not include facial fractures as a risk factor for developing OSA. A jaw fracture would not likely affect the soft palate and throat which is where the mechanical condition causing OSA was centered. Moreover, the opinion noted that lapse of time between the jaw fracture in 1965 and the earliest diagnosis, and as the evidence also shows the earliest symptoms, of OSA in 2010. Based on all this, it was opined that the OSA was not at least as likely due to the residuals of the inservice jaw fracture. Further, the January 2021 examination yielded an opinion that while there was research suggesting an association or correlation between OSA and PTSD, no causal relationship has been established. OSA was a mechanical condition of the upper most airway and was not directly affected by psychological conditions including PTSD. Based on this medical data OSA was not as least as likely as not secondary to PTSD. The opinion went even further and addressed whether the Veteran's past alcohol abuse was related to OSA. As to this it was opined that alcohol was a risk factor for OSA due to relaxation of the musculature of the upper most airway. However, this only pertained to active alcohol abuse. In this case, the Veteran's alcohol abuse had been in remission for years and he still had OSA. Based on this, OSA was not as least as likely as not secondary to alcohol abuse. It has also been contended that the Veteran's service-connected disorders may have aggravated the claim OSA. With respect to whether the residuals of the inservice jaw fractured aggravated the claimed OSA, the January 2021 examiner again noted that Mayo Clinic Research does not include facial fractures as a risk factor for developing OSA and a jaw fracture would not likely affect the soft palate and throat where the mechanical condition causing OSA was centered. Continuing, the examiner addressed the report of the Veteran's spouse that he had snored heavily for years, but observed that this was not noted and/or diagnosed until 2010 and that the jaw injury was in 1965. In other words, the jaw injury proceeded the diagnosis of OSA by 45 years. Given this medical information as well as the lapse of time of almost a half of a century before OSA even manifested after the injury, it was opined that the OSA was not as least as likely as not aggravated beyond natural progression by residuals of fractured jaw. Next, addressing aggravation of OSA by PTSD, submitted in August 2017 was a research article from the Journal of Clinical Sleep Medicine addressing the impact PTSD may have on the adherence in use of a CPAP machine in those with OSA. The article, entitled "The Impact of [PTSD] on CPAP Adherence in Patients with Obstructive Sleep Apnea" stated that among soldiers with OSA, comorbid PTSD was associated with significant decrease CPAP adherence. However, "[a] mutual relationship or some degree of correspondence that is not based on causation or aggravation is not sufficient to meet the requirements of [38 C.F.R.] § 3.310." Harvey v. Shulkin, No. 16-1515, slip op. at 13 (U.S. Vet. App. (Feb. 7, 2018) (panel decision). In other words, correlation is not proof of causation; and, by logical extension, correlation is not proof of secondary aggravation. Moreover, the January 2021 examiner again noted that OSA was a mechanical condition of the upper most airway which was not directly affected by psychological conditions, including PTSD. The examiner stated that there was no indication that OSA was aggravated in any way beyond natural progression by PTSD. In fact, the examiner stated that the Veteran's OSA had actually improved with the use of a CPAP machine. Thus, it was opined that OSA was not as least as likely as not aggravated beyond natural progression by PTSD. As to this, to the extent that the article submitted suggests that OSA may worsen due to noncompliance in using a CPAP machine, a September 2017 PTSD Disability Benefits Questionnaire (DBQ) reflects that on psychiatric examination at that time the Veteran reported using his CPAP machine. Also, his spouse reported in a December 2018 statement that he used his "sleep apnea mask" every night. In other words, there is no evidence that the Veteran is not compliant in using his CPAP machine, whether due to PTSD or otherwise. The January 2021 examiner also addressed aggravation of OSA by the Veteran's alcohol use disorder. The examiner again reported that while alcohol was a risk factor for OSA due to relaxation of the musculature of the upper most airway, this only pertained to active alcohol abuse. In this case, the Veteran's alcohol abuse had been in remission for years and he still had OSA. Thus, it was opined that OSA was not as least as likely as not aggravated beyond its natural progression by alcohol abuse which had been in remission for many years. Furthermore, in the February 2021 addendum, the examiner addressed whether the combined effect of the service-connected disorders was an aggravating factor with respect to OSA. It was stated that based on all available data the OSA was not as least as likely as not due to or permanently aggravated beyond natural progression by PTSD with remote ETOH disorder and/or head injury with jaw fracture in service. The Board notes that the Court held in the case of Ward v. Wilkie, 31 Vet. App. 233 (2019), that aggravation pursuant to 38 C.F.R. § 3.310 does not require a permanent worsening of the condition. Rather, the Court explained that "aggravation" is any incremental increase in disability attributable to the service-connected disability, i.e., any additional impairment of earning capacity that is above the degree of disability existing before the increase, regardless of its permanence. Id. However, here, although the VA examiner used the term beyond its natural progression, the VA examiner did not indicate that there was any incremental or transient increase. Rather, the examiner found that there was no causal relationship. The Veteran believes his sleep apnea is related to an in-service injury, event, or disease; or proximately due to or the result of/aggravated by his service-connected disabilities. Here, the Veteran is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires specialized medical knowledge. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the medical evidence. In conclusion, the Board finds that the preponderance of the evidence weighs against the claim for service connection for sleep apnea. Thus, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. J.N. MOATS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Fussell, 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.