Citation Nr: 21028004 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 14-17 511 DATE: May 10, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to posttraumatic stress disorder (PTSD) with general anxiety disorder and unspecified depressive disorder, is denied. FINDING OF FACT The preponderance of the evidence is against finding that OSA began during active service, or is otherwise related to an in-service injury or disease or secondary to (caused or aggravated by) any service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 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 in the United States Army from April 1977 to July 1977 and from February 2003 to January 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). In December 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The Board issued a remand in January 2018 instructing the RO to obtain a VA examination to determine the nature and etiology of the Veteran's OSA. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The RO obtained May 2018 medical opinion and several August 2019 addendum opinions. The Board finds the RO substantially complied with the January 2018 remand directives. Entitlement to service connection for OSA. The Veteran seeks entitlement to service connection for OSA. He was diagnosed with moderate obstructive sleep apnea/hypopnea syndrome in an October 2009 private sleep study. He contends that the sleep apnea had its onset during his active service or is causally related to his service-connected post-traumatic stress disorder (PTSD) with general anxiety disorder and unspecified depressive disorder. In support of his contention that the sleep apnea is secondary to the service-connected psychiatric disability, the Veteran has submitted the abstract for a medical article from the American Academy of Sleep Medicine discussing the high risk of sleep apnea among young veterans with PTSD, and a private medical opinion from Dr. W. G. The abstract indicates that 69.2 percent of Iraq and Afghanistan veterans who visited a VA outpatient PTSD clinic for evaluation had a high risk for sleep apnea and that the risk increased with PTSD symptom severity. Although the mechanism underlying the relationship between sleep apnea and PTSD in military veterans was unclear, potential factors that may connect the two disorders include disturbed sleep in combat, prolonged sleep deprivation, and chronic stress from PTSD. In his opinion, Dr. W. G. stated that the Veteran's sleep disorder was more likely than not related to his PTSD. As a rationale for the opinion, Dr. W. G. explained that the Veteran's symptoms started during his time of service. Service connection may be granted for a 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). Secondary service connection requires: (1) a service connected disability; (2) a nonservice connected disability; and (3) evidence that the nonservice connected disability is either (a) proximately due to or the result of the service-connected disability or (b) aggravated (increased in severity) by the service-connected disability. See 38 C.F.R. § 3.310. Service treatment records (STR) lack any complaint, diagnosis, or treatment of OSA. A September 2004 note showed the Veteran reported sleep disturbance related to his medical condition such as anxiety. Post-service treatment records show a current disability of OSA. See e.g., October 2009 Private Sleep Study; February 2010 Neurology Note (OSA with hypersomnia). The Board considered the Veteran's contentions and the evidence submitted in support of those contentions. The medical opinion submitted by the Veteran was general in a nature and does not discuss the Veteran's particular medical history or current condition. In his opinion, Dr. W. G. did not specify what records, if any, he reviewed in reaching his conclusion. Moreover, he referred only to a "sleep disorder" and not specifically to the Veteran's OSA. As such, it was unclear whether the opinion even applied to the Veteran's OSA. Therefore, the Board did not accept the abstract or Dr. W. G.'s opinion as probative evidence that the Veteran's OSA was caused by, due to, or aggravated by the service-connected psychiatric disability. Nevertheless, the Board found that the evidence of record warranted a VA examination. Therefore, the claim was remanded for an opinion to determine the nature and etiology of the Veteran's OSA. In a May 2018 medical opinion, the clinician stated that OSA was a neurological or anatomical condition which was not caused by any mental health condition including PTSD. The medical literature does support some correlation between the occurrence of PTSD and sleep apnea but does not establish any causal relationship between PTSD and sleep apnea with any medical certainty. Statistical correlation is not causation. Although there may be a higher rate of PTSD in veterans with sleep apnea and vice versa, this does not indicate that PTSD was causing the sleep apnea. PTSD was also less likely than not to be associated with any aggravation of sleep apnea. Sleep disturbance definitely occured with PTSD but this is not the same as sleep apnea. Sleep apnea is a specific medical condition caused by physical anatomic changes in the airway, or less commonly, central nervous system pathology, not psychological issues. The RO further considered whether the Veteran's OSA was secondary to any of his service-connected disabilities and obtained medical opinions to address that. See October 2018 Deferred Rating Decision. On an August 2019 addendum opinion, the clinician stated the Veteran's OSA was less likely than not (less than 50 percent probability) proximately due to or the result of Veteran's service connected conditions. The clinician explained that right and left lower extremity diabetic polyneuropathy anterior crural nerve (femoral)(also claimed as restless leg syndrome), bilateral hearing loss, diabetes mellitus, glaucoma, right finger tendonitis, left ring finger tendonitis, and tinnitus had no causal association with OSA which was due to obesity and upper air way soft tissue abnormalities. The Board acknowledges the Veteran's assertion that his OSA was related to his military service or service-connected PTSD. However, a lay person is not considered competent to medically attribute OSA to PTSD as doing so to requires medical knowledge and expertise the Veteran has not been shown to possess. See Kahana v. Shinkseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, the competent medical evidence of record answered the question and did not support a causal relationship between the Veteran's OSA and military service and PTSD. Overall, the evidence of record found that the Veteran's OSA did not manifest within one year of service, start in service, was related to service or any service-connected disability. There was no evidence of a complaint, diagnosis, or treatment of OSA while in-service. The in-service complaint of sleep disturbance was reported by the Veteran to be related to his concern about his medical conditions. Sleep disturbance is not sleep apnea. The Veteran was diagnosed with OSA in 2009 which was nearly 4 years after his discharged from service. The medical opinion submitted by the Veteran was general in a nature and did not discuss the Veteran's particular medical history or current condition. In addition, the VA examination acknowledged a correlation between OSA and PTSD but did not support a causal relationship between OSA and PTSD or any of the Veteran's service-connected disabilities and OSA. Accordingly, the criteria for entitlement to service connection for OSA have not been established, either through medical or lay evidence. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim of entitlement to service connection for OSA, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Harris, Attorney Advisor 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.