Citation Nr: 21027479 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 10-44 743 DATE: May 5, 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 preponderance of evidence fails to establish that the Veteran has sleep apnea that is related to service or was caused or aggravated by service-connected PTSD. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1961 to October 1987. This appeal arises from an August 2009 rating decision by the VA Regional Office (RO), which, in pertinent part, denied service connection for sleep apnea. On a February 2010 VA Form 9, the Veteran requested a Board of Veterans' Appeals (Board) hearing but withdrew this request in February 2015. See 38 C.F.R. § 20.704(e). In August 2017, the Board requested a medical expert opinion from the Veterans Health Administration (VHA), which was received in October 2017. In May 2018, the Board requested another VHA expert opinion, and a June 2018 opinion was provided. In a December 2018 decision, the Board reopened and denied the claim of entitlement to service connection for sleep apnea, to include as secondary to PTSD. The Veteran appealed the Board's December 2018 decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2019 Order, the Court granted the parties' June 2019 Joint Motion for Partial Remand (JMPR) to vacate and remand the Board's decision, to the extent that it denied a claim of entitlement to service connection for sleep apnea including as secondary to PTSD. Accordingly, the Board remanded the issue for further development in December 2019. The appeal is now again before the Board. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Entitlement to service connection for sleep apnea, to include as secondary to service-connected PTSD, is denied. Service connection may 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. "To establish a right to compensation for a present disability, 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'the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The Veteran, in this case, contends that his PTSD medications have caused significant weight gain, which in turn was a substantial factor in his eventual development of sleep apnea. It is important to note that obesity in and of itself is ineligible for service connection, but it may be an "intermediate step" between a service-connected disability and a current disability that may be service connected on a secondary basis under 38 C.F.R. § 3.310. See Walsh v. Wilkie, 32 Vet. App. 350 (2020); see also G.C. Prec. Op. 1-2017, at 2-3. In particular, service connection may be warranted if the following questions are answered in the affirmative: (1) whether the service-connected disability caused the Veteran to become obese or aggravated the Veteran's obesity; (2) if so, whether the obesity/aggravation of obesity as a result of the service-connected disability was a substantial factor in causing the current disability; and (3) whether the current disability would not have occurred but for (obesity caused/obesity aggravated) by the service-connected disability. See Walsh, 32 Vet. App. 350. In the December 2018 decision, the Board noted that the Veteran primarily contends that his diagnosed sleep apnea was caused by his PTSD, but the evidence did not support such an etiological link. As noted in the Board's December 2019 remand, VA afforded the Veteran a March 2013 examination with an opinion and October 2017 and June 2018 VHA opinions, but none of these opinions adequately addressed "the theory of entitlement to secondary service connection on the basis of aggravation." See El-Amin v. Shinseki, 26 Vet. App. 136, 140-141 (2013). Additionally, within the Court-granted June 2019 JMPR, the parties agreed such opinions were adequate to the extent that they addressed whether the Veteran's PTSD caused his sleep apnea, and "the portion of the Board's [2018] decision that found [the Veteran's] PTSD did not cause his sleep apnea should not be disturbed." However, the parties agreed that because the Board's December 2018 decision failed to address whether the Veteran's service-connected PTSD aggravated his sleep apnea, "the Board must provide a new decision with an adequate statement of reasons or bases addressing this theory of entitlement." Accordingly, in December 2019, the Board remanded the appeal for an addendum VA opinion that addressed whether the Veteran's sleep apnea is at least as likely as not proximately due to a service-connected disability or aggravated beyond its natural progression by a service-connected disability, including PTSD. In January 2020, an addendum opinion was provided. The Board finds that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Turning to the evidence of record, the Board notes the medical evidence confirms the Veteran's obesity plays a substantial factor in his current sleep apnea. Thus, the pertinent inquiries here are whether the Veteran's service-connected PTSD (or PTSD medications) caused the Veteran to become obese or aggravated the Veteran's obesity, or, alternatively, whether the Veteran's PTSD otherwise caused or aggravated his sleep apnea. The Board finds the most persuasive evidence indicates all of these inquiries must be answered in the negative. The January 2020 examiner noted that the Veteran was diagnosed with obstructive sleep apnea (OSA) 16 years after his separation from service. The examiner acknowledged the Veteran's service-connected disabilities including PTSD and opined that the Veteran's sleep apnea is less likely than not proximately due to or the result of the Veteran's service-connected conditions and is less likely than not aggravated beyond its natural progression by a service-connected condition including PTSD. The examiner provided the following rationale: At this time there is no nexus found in the medical literature reviewed that the Veteran's SC disability conditions enlisted above causes the anatomical condition responsible for OSA (obstructive sleep apnea). Veteran has OSA condition which is due to an anatomical abnormality in which there is an increase in tissue around the airway, that collapse during sleep causing snoring and apnea. At this time there is no nexus found in the medical literature reviewed that Veteran's SC disability conditions enlisted above aggravate the anatomical condition responsible for OSA. There is documented evidence that the cause of his OSA was overweight condition developed 16 years after his discharge. None of the SC conditions enlisted above including PTSD are the "direct-cause or direct-aggravant" of his overweight conditions. Also Veteran's PTSD medications including sertraline, citalopram, and trazodone does not cause significant weight gain according to Micromedex. The examiner provided a detailed, thorough rationale for all opinions expressed after a full review of the claims file, consideration of the Veteran's lay statements, and research into relevant medical literature (such as Micromedex). The examiner found no basis to support an etiological link between the Veteran's PTSD and his sleep apnea. The examiner considered aggravation as well as whether obesity was an "intermediate step" between his PTSD (and/or PTSD medications) and the sleep apnea, but found such links to be unlikely because based on medical literature showing his specific PTSD medications are not productive of significant weight gain. The examiner found no possible causation or aggravation because there was no anatomical relationship between PTSD and sleep apnea. The examiner further considered all service conditions listed but found none of them as likely causing or aggravating his "overweight conditions." Quite simply, the examiner opined that obesity is not an intermediate step between any service-connected disability and the Veteran's current sleep apnea. The Board also considered the lay evidence. Medical evidence is not categorically required to establish an element of the claim, including the nexus element. Here, the Board is not unequivocally rejecting lay evidence but, instead, finds that it is not sufficient to substantiate the claim. Despite his contentions otherwise, the Veteran has not submitted persuasive evidence showing that his sleep apnea is related to service or was caused by or aggravated by any service-connected disability. The Veteran has not alleged that a specific service-connected disability, other than PTSD, caused or aggravated his sleep apnea. Further, other than the contention related to his PTSD and PTSD medications, the record does not reasonably raise that any specific disability caused or aggravated his obesity as an intermediary step as a cause to his sleep apnea. A veteran bears the evidentiary burden to establish all material elements of a claim. See 38 U.S.C. § 5107(a); Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). Unlike many areas of law, the claimant in the VA benefits system, however, has the burden of persuasion only to an equipoise standard or an "equality of the evidence" standard with the help of VA in developing the claim. See Skoczen v. Shinseki, 564 F.3d 1319, 1324 (Fed. Cir. 2009) (citing 38 U.S.C. § 5107(b)). Nevertheless, the Veteran failed to provide evidence that reaches even only the point of equipoise. As discussed in the Board's December 2018 decision, after the March 2013 in-person examination and multiple reviews of the Veteran's claims file, to include reviews in connection with VHA-provided opinions, no examiner was able to provide positive nexus evidence. Instead, the negative opinions of record as a whole and the rationales for the negative opinions address both direct and secondary service connection and fail to support the Veteran's contentions, even when considering the equipoise standard. Therefore, in view of these persuasive and probative medical opinions, the evidence weighs against a nexus in this case, to include a secondary nexus. The Board affords these opinions great probative weight and finds them persuasive regarding the nexus element, on which the appeal concerning the sleep apnea issue turns. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Although the Veteran believes that he suffers from sleep apnea that is related to his military service, to include as secondary to service-connected PTSD, there is no indication that he has specialized training sufficient to render a competent opinion on the matter, as such opinion requires medical expertise due to its complex nature. Accordingly, the Veteran's opinion regarding the etiology and onset of his sleep apnea is not competent evidence and is afforded no probative weight for the question of nexus. In sum, the nexus element of the claim is not met. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Therefore, service connection for sleep apnea, on a direct or secondary basis, is not warranted. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Santiago, 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.