Citation Nr: 21028441 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-02 219 DATE: May 11, 2021 ORDER Entitlement to service connection for obstructive sleep apnea, to include as secondary to his service-connected posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The Veteran's obstructive sleep apnea was not caused by or otherwise related to active service, to include as secondary to his service-connected PTSD. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for obstructive sleep apnea, to include as secondary to PTSD have not been met. 38 U.S.C. §§ 1110, 5107 (2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service with the United States Marine Corps from September 1988 to September 1992. In a substantive appeal, dated June 2016, a video conference hearing was requested. In August 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. This matter was previously remanded on multiple occasions, to include most recently in July 2020. In that decision, the Board directed additional development to include scheduling the Veteran for a new VA examination. As a preliminary matter, the Board observes that the Veteran's appeal previously included a claim of entitlement to service connection for alcohol dependence, to include as secondary to service-connected PTSD. In an October 2020 Rating decision, that claim was granted and assigned an effective date of August 24, 1994. Therefore, the noted claim is no longer on appeal and will not be addressed in this decision. As to the remaining claim of entitlement to service connection for obstructive sleep apnea, the requested development is now complete, and the matter has returned to the Board for appellate consideration. Duty to Assist and to Notify VA is required to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2018). Copies of compliant VCAA notices were located in the claim's file. VA's duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. Peters v. Brown, 6 Vet. App. 540, 542 (1994). In this case, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Thus, upon careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service connection, generally Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C. § 1110, 1131 (2014); 38 C.F.R. §§ 3.303 (a), 3.304 (2018). Entitlement to service connection benefits is established when the following elements are satisfied: (1) the existence of 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 disease or injury incurred or aggravated during service (the medical 'nexus' requirement). See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); 38 C.F.R. § 3.303 (a) (2018). Service connection also is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a) and (b) (2018). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and, (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (2014); 38 C.F.R. § 3.102 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. Id. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue. 1. Entitlement to service connection for obstructive sleep apnea, to include as secondary to PTSD The Veteran contends that his current diagnosis of obstructive sleep apnea is causally related to active service, to include as secondary to his service-connected PTSD. On review of the record, the Board concludes that, while the Veteran has a current diagnosis of obstructive sleep apnea (OSA), the preponderance of the evidence weighs against finding that it was manifested in or resulted from active service, to include as secondarily related to a service-connected disability. Service treatment records are silent for complaints of impaired sleep, daytime fatigue, snoring or a diagnosis of obstructive sleep apnea. No abnormalities of the upper respiratory system were identified at enlistment in December 1987. On examination at separation, no upper respiratory related treatment or abnormalities were observed in June 1992. Post-service treatment records show that the Veteran attended a pulmonary sleep consultation in April 2015. During the clinical evaluation, he reported current symptoms including difficulty initiating and maintaining sleep, loud snoring, witnessed apneas, choking and gasping, daytime fatigue, restlessness, involuntary leg movements, frequent nightmares and dream enactments. A polysomnography revealed diagnostic findings consistent with a current diagnosis of obstructive sleep apnea. Continuous positive airway pressure (CPAP) therapy was prescribed to treat his symptoms. Other VA treatment records list complaints of sleep disturbance in connection with mental health consultations, to include between January 2015 and April 2019. In June 2015, the Veteran associated a lay statement with the claim's file. There in, he reported bouts with sleep disturbance dating back to separation in 1992. He further asserts progressive symptoms over time, with aggravation due to his service-connected PTSD. During a Board hearing in August 2018, the Veteran testified regarding his experience of sleep trouble during active service. Specifically, he associated his symptoms with sleeping in a truck for three and a half years. Years later, a mental health physician reportedly suggested a correlation between his service-connected PTSD and his sleep disorder. Pursuant to a Board remand decision, the Veteran was afforded a VA examination. On examination in August 2020, a current diagnosis of OSA was confirmed. During the clinical interview, the Veteran indicated his initial diagnosis was rendered in 2015 following a sleep study. Regular use of CPAP therapy was acknowledged. According to the Veteran, his daily routine includes a bedtime between 9:30-10:30 pm and rising from sleep between 7:30 to 8:00 am. He asserts daytime fatigue due in part to medications prescribed to treat his PTSD symptoms. Other symptoms included problems with focus and concentration. There is no evidence that the Veteran's sleep disorder required oral medications to control his symptoms. A functional impact was described as daytime hypersomnolence, poor concentration/focus and drowsiness associated with prescribed psychiatric medications. Following the clinical interview, the examiner opined that it is less likely than not (less than 50 percent probability) that the Veteran's sleep apnea was incurred in or otherwise causally related to active service, to include as secondary to his service-connected PTSD. In support of the stated conclusion, the examiner noted that the Veteran was first diagnosed with obstructive sleep apnea in 2015. The diagnosis was rendered approximately 23 years after separation. At separation, the Veteran's weight was documented as 160 pounds (lbs.). In 2015, his current weigh was listed as 219 lbs. By comparison, the Veteran's body mass index (BMI) increased from 24.3 at separation to 33 when the sleep study was conducted decades later. Moreover, service treatment records failed to show any evidence of sleep disturbances. While the Veteran has a confirmed diagnosis of PTSD and related alcohol dependence, both conditions are considered psychological in nature. Review of the medical evidence does not support a plausible linkage between PTSD, an alcohol abuse disorder, and an anatomical obstruction, to include aggravation beyond its natural progression. Obstructive sleep apnea is a diagnosis with a clear and specific etiology. The respiratory condition has been characterized by recurrent collapse of the velopharyngeal and/or nasopharyngeal airway during sleep. The likely etiology of the Veteran's obstructive sleep apnea is obesity. Other risk factors included advanced age, male gender, and a craniofacial or upper airway soft tissue abnormality. Considering the above, the medical evidence does not support or suggest that the Veteran's obstructive sleep apnea is causally related to or permanently worsened (aggravated) by his service-connected PTSD and/or alcohol abuse disorder. In making all determinations, the Board has fully considered the lay assertions and medical evidence of record. While the Veteran is competent to report on his symptoms of obstructive sleep apnea and their onset, his contentions are inconsistency with other evidence in the record. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Review of the record indicates that the Veteran was initially diagnosed with obstructive sleep apnea in 2015, almost 3 decades after separation. In fact, his BMI increased from 24.3 (within normal range) at separation, to 33 (considered obese) in 2015. On VA examination in August 2020, the examiner acknowledged the Veteran's current diagnosis of OSA and the absence of symptoms or related treatment during active service. Post-service treatment records document weight gain of more than 50 pounds overtime. Excessive weight and advanced age were listed as known risk factors for the development of obstructive sleep apnea. While the Board is sympathetic to the Veteran's subjective belief that his respiratory condition is causally related to active service, to include as secondary to his service-connected psychiatric disabilities, the medical evidence does not support his contentions. To the contrary, the medical evidence shows a correlation between the Veteran's obstructive sleep apnea and known risk factors, such as excessive weight and advanced age. Therefore, no nexus was found between the Veteran's obstructive sleep apnea and active service, to include as secondary to his service-connected psychiatric disabilities or medications prescribed to treat related symptoms. Accordingly, as the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107 (b) regarding reasonable doubt are not applicable. The claims of entitlement to service connection for OSA, to include as secondary to service-connected PTSD must be denied. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Whitaker, 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.