Citation Nr: 21027508 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 12-31 277 DATE: May 5, 2021 ORDER Entitlement to service connection for a sleep apnea disability, to include as secondary to post-traumatic stress disorder (PTSD) is denied. FINDING OF FACT The Veteran's sleep apnea disability is not caused or aggravated by his service-connected disabilities, to include his PTSD, and is not otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for a sleep apnea disability, to include as secondary to PTSD, have not been met. 38 U.S.C. §§ 1110, 1111, 1153, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1968 to June 1970, with service in Korea. He was awarded, among others, the Combat Infantry Badge. Additionally, the Veteran served in the Army Reserve with periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2010, rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran attended a travel Board hearing before the undersigned Veterans Law Judge in February 2016. A transcript of the hearing is of record. This matter was previously remanded by the Board for further development in May 2016, June 2018, January 2020, and December 2020. In consideration of the appeal, the Board is satisfied there was substantial compliance with the remand directives and will proceed with review. See, Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for a sleep apnea disability, to include as secondary to PTSD The Veteran contends that he is entitled to service connection for a sleep apnea disability, including as secondary to his service-connected PTSD. Specifically, the Veteran argues that his PTSD has resulted in chronic sleep impairment and obesity, which has either caused or aggravated his sleep apnea. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may be established on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id. The Veteran testified at his February 2016 Board hearing, that he has had a long history of sleep deprivation, including a lot of snoring. The Veteran testified that he could not sleep and stayed awake in the barracks, walking around the building because he was woken up by his fellow service-members who told him he was "snoring too hard". The Veteran had an examination for his claimed sleep apnea disability in June 2017. The examiner opined that is was less likely than not that the Veteran's obstructive sleep apnea was incurred in or caused by his active service. The examiner stated that the Veteran's service treatment records were silent for a diagnosis of sleep apnea or witnessed sleep apnea spells. Additionally, the examiner opined that it was less likely than not that the Veteran's sleep apnea was proximately due to or the result of his service-connected PTSD and was less likely than not aggravated beyond its natural progression by PTSD. The examiner stated that obstructive sleep apnea is caused by a mechanical obstruction of the airway during sleep. The examiner stated that sleep apnea is due to anatomical variations and is not likely caused or aggravated by PTSD. In a June 2019 medical opinion, the examiner opined that the Veteran's current obstructive sleep apnea is less likely than not related to his reported sleep issues during service. The examiner noted that obstructive sleep apnea is caused by a blockage of the upper airway that restricts air passage during sleep, and that this pathology is not caused or aggravated by insomnia, sleep walking, or other sleep disorders. The examiner further noted that the Veteran's sleep apnea was diagnosed 37 years after his discharge from active service. Additionally, the examiner indicated that the presence of primary snoring is not an indication of sleep apnea, and that snoring, accompanied by observed periods of apnea, is more indicative of obstructive sleep apnea. Furthermore, the examiner opined that the Veteran's obstructive sleep apnea is less likely than not related to his service-connected PTSD. The examiner noted that PTSD is a psychological condition that has no bearing on the anatomical and pathological causes of obstructive sleep apnea. The examiner indicated that chronic sleep impairment does not result in obesity, but rather lifestyle factors result in obesity. In a January 2020 medical opinion, the examiner stated that "[t]he opinions requested in the most recent 2507 request were provided in the documentation from 6/19/2019. The previously provided opinions stand." An August 2020 addendum medical opinion was obtained from a different medical examiner. The examiner reviewed the Veteran's service treatment records, lay statements, and "board of appeal letters" from May 25, 2018 and February 25, 2016, and opined that it was less likely than not that the Veteran's sleep apnea was incurred in or caused by his active duty service, including his noted problems with sleeping, insomnia, and sleep walking during service. The examiner also opined that it was less likely than not that the Veteran's sleep apnea was caused or aggravated by his service-connected disabilities, to include his service-connected PTSD. The examiner stated that the Veteran's service treatment records do not show complaint of sleep apnea or witnessed apnea during service. The examiner noted that PTSD is a mental health condition that is triggered by witnessing or experiencing a terrifying event, and that these conditions are "behavior and not physical and thus do not contribute to alteration in the muscles of the tongue and throat which is the cause sleep apnea". The examiner further stated that "[o]besity is a risk factor for developing sleep apnea but is not a definitive cause of sleep apnea. Increases in body weight can contribute to pressure on the upper airway and causing collapse and changes in neuromuscular control from fatty deposit and decrease lung volume. Chronic sleep impairment does not result in obesity. Obesity is result of lifestyle." The examiner further noted that the Veteran's service treatment records do not show "obesity or any counseling with weight control program and height-weight standards as outlined in Army Regulation 600-9 during active and reserve service". The examiner also stated that snoring with observed periods of apnea is more indicative of obstructive sleep apnea but snoring alone does not cause sleep apnea. In accordance with the December 2020 Board remand, a medical opinion regarding the etiology of the Veteran's sleep apnea was obtained in January 2021. The examiner opined that it was less likely than not that the Veteran's sleep apnea condition was incurred in service or is related to his claimed in-service sleep disturbances. Additionally, the examiner opined that it was less likely than not that the Veteran's obesity is simply due to his PTSD, resulting in obstructive sleep apnea, and that it was less likely than not that the Veteran's obstructive sleep apnea was caused or aggravated beyond its natural course due to PTSD or other conditions. The examiner noted that there was no evidence of obstructive sleep apnea while in service despite the Veteran's claim to the contrary. The examiner stated that while the Veteran cites snoring, sleep deprivation, insomnia, sleepwalking and other forms of sleep disturbance, these do not constitute obstructive sleep apnea. Snoring, gasping, easy awakening, daytime somnolence etc. are general symptoms and not specific to any one form of sleep disturbance. The examiner noted that most of the Veteran's sleep disturbances are in the psychological realm and unrelated to the physical aspects of sleep apnea. The examiner noted that the risk factors for obstructive sleep apnea do include obesity, but also neck length, neck circumference, family history, sleep hygiene, and others. Furthermore, the examiner noted that the articles cited by the Veteran and his representative do not establish causation. The examiner stated that the articles merely discuss risk factors or associations and do not represent cause, in and of themselves. The examiner stated that no one variable claimed by the Veteran causes obstructive sleep apnea. Additionally, the examiner noted that obesity is multifactorial, and the single greatest cause is too many calories consumed for the number of calories expended, with all other risk factors subordinate to caloric intake. The examiner noted that other factors include family genetics, exercise and attitudes towards exercise, types of calories consumed, basal metabolic rate, etc. The examiner indicated that the articles submitted by the Veteran only point to associations for obesity, PTSD and obstructive sleep apnea, etc. The examiner stated that PTSD and psychological comorbidities do not cause obstructive sleep apnea, and that there is no physiologic or anatomic mechanism by which they can do so. Obstructive sleep apnea is due to upper airway obstruction associated with apneic episodes. The examiner noted that psychological conditions have their own associated sleep disturbances but do not impact the mechanism of obstructive sleep apnea, either as to cause or aggravation. Furthermore, the examiner indicated that there is no evidence of aggravation of the Veteran's obstructive sleep apnea beyond its natural course due to any cause. The Veteran was diagnosed with mild obstructive sleep apnea in a March 2007 sleep study, and there is no evidence of aggravation beyond its natural course due to any cause. The natural course of the condition is progression over time, often requiring CPAP setting adjustments. The Veteran has been considerably overweight since at least December 21, 1993 at 215 pounds. The Veteran was 218 pounds on April 14, 1998 and 234 pounds, officially obese, on May 6, 2003. The examiner stated that the Veteran was overweight long before the diagnosis of obstructive sleep apnea in 2007. The examiner noted that there is no evidence of obstructive sleep apnea in service, and that sleep disturbances described by the Veteran during service are more likely than not psychologically related and are noted to be insomnia and sleepwalking on his entrance examination, but negative at separation. The examiner noted that the Veteran's in-service sleep complaints noted in his hearing testimony were nonspecific and the sleep deprivation strongly suggests psychological conditions. Furthermore, the examiner indicated that the articles cited by the Veteran and his representative do not establish cause and effect for obesity or the claimed resultant obstructive sleep apnea. The examiner stated that they merely discuss associations and risk factors and are often misconstrued by laypersons, and that it is established medical knowledge and practice that psychological conditions do not cause obstructive sleep apnea. The Board finds that entitlement to service connection for an obstructive sleep apnea disability is not warranted. The Board finds the January 2021 opinion to be highly probative. The probative value of medical opinion is based on his or her knowledge and skill in analyzing the data and the medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Nieves-Rodriguez, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The January 2021 opinion was provided by a medical professional who possesses the necessary education, training, and expertise to provide the requested opinion. The January 2021 opinion is also shown to have been based on a thorough review of the Veteran's record, including the pertinent lay statements and medical literature cited by the Veteran, and is accompanied by a detailed rationale. Additionally, the examiner adequately addressed why the Veteran's sleep apnea was less likely than not related to his military service, in that the Veteran's in-service sleep issues were more likely than not psychologically related. Further, the examiner adequately addressed why the Veteran's sleep apnea was less likely than not caused or aggravated by his service-connected disabilities, to include PTSD and obesity. As the examiner relied on the record, including the Veteran's statements and submissions, and provided an adequate rationale, the Board finds that the January 2021 opinion is highly probative. Furthermore, there is no medical opinion to the contrary. Although lay persons are competent to report symptoms or other matters within their personal knowledge, and to provide opinions on some medical matters (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), here, the specific matters of the diagnosis and etiology of sleep apnea are complex medical matters that fall outside the realm of common knowledge of a lay person. See Clayburn v. West, 12 Vet. App. 488, 496-97 (1997) (holding that a veteran is not competent to relate currently diagnosed joint disease to the continuous post-service back injury). Specifically, the question of causation of obstructive sleep apnea involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. In this regard, such an opinion requires specialized knowledge of how the human body develops obstructive sleep apnea and the impact past medical symptoms could have on such disease, if any. The Veteran is not shown to have the necessary training and expertise to provide a competent opinion as to the causes of obstructive sleep apnea. Therefore, the Board finds that the Veteran's assertion that his obstructive sleep apnea is etiologically related to his in-service sleeping issues or was caused or aggravated by his service-connected disabilities has no probative value. Furthermore, the Board recognizes the Veteran's representative's assertions that the January 2021 examiner's opinion inadequate because they did not point to any medical literature which would dispute the medical literature already cited to in favor of the Veteran. However, despite the Veteran's representative's assertions, the Board finds that the January 2021 medical opinion to be highly probative because the examiner provided a detailed rationale based on the relevant evidence of record and the medical literature specifically cited by the Veteran. Based on the foregoing, the Board finds that service connection for obstructive sleep apnea is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the finding that there is a causal relationship between the Veteran's obstructive sleep apnea and to an event, injury or disease that occurred in military service. As such, service connection for obstructive sleep apnea is not warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David M. Sebstead, 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.