Citation Nr: 21028782 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-31 362 DATE: May 12, 2021 ORDER Service connection for obstructive sleep apnea (OSA) is granted. FINDING OF FACT The evidence is in relative equipoise as to whether the Veteran's OSA was incurred in active service. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Air Force from January 2004 to January 2008 with service in Southwest Asia. This appeal comes before the Board of Veterans' Appeals (Board) from an October 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied service connection for OSA. The Veteran's notice of disagreement (NOD) was received in March 2016. The RO issued the statement of the case (SOC) in March 2016, and the Veteran's VA Form 9, substantive appeal was received in June 2016. In October 2018 the Board remanded the case to the RO for further development and adjudicative action. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). "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 be established where a Persian Gulf veteran exhibits objective indications of a qualifying chronic disability, provided such disability became manifest either during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016, and by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(1). Signs or symptoms which may be manifestations of undiagnosed illness include, but are not limited to: fatigue, signs or symptoms involving the skin, muscle or joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system, and gastrointestinal signs or symptoms. 38 C.F.R. § 3.317 (a), (b). A qualifying chronic disability means a chronic disability resulting from an undiagnosed illness; a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms (chronic fatigue syndrome, fibromyalgia, irritable bowel syndrome, or any other illness that the Secretary determines meets the criteria), or any diagnosed illness that the Secretary determines warrants a presumption of service-connection. 38 C.F.R. § 3.317 (a)(2)(i). Service connection may also be established on a secondary basis for a disability which is proximately caused by or aggravated by a condition for which service connection has already been established. 38 C.F.R. § 3.310. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected psychiatric disability. The Veteran has variously alleged that his OSA started in service, is due to his in-service environmental exposures or, alternatively, is secondary to his service-connected psychiatric disability. See June 2016 VA Form 9; see also January 2018 lay statement. The record reflects that the Veteran is service-connected for PTSD. Turning to the evidence of record, the Veteran's STRs are silent for any complaints, findings or diagnosis of OSA during active service. Private treatment records show that the Veteran reported in September 2013 that he had trouble sleeping at times. A May 2014 chiropractic treatment note reflects that the Veteran reported feeling more fatigued than normal. He stated that he goes to bed allowing for plenty of time to sleep but doesn't wake up rested. VA treatment records indicate that the Veteran was seen for a sleep medicine consult in March 2016. The Veteran reported difficulty with sleep onset and maintenance, often associated with ruminative thinking. The VA physician noted that the onset of insomnia "was about 10 years ago and probably associated with military service and multiple deployments with sleep/wake schedule complications." It was noted that the Veteran's spouse recommended the consultation because of the Veteran's snoring, low energy, inhibited concentration, diminished libido and daytime sleepiness. During a follow up consultation in April 2016, the VA physician again noted that the Veteran has a history of long-standing insomnia that probably has a conditioned component, as well as interruptions with nightmares that occur two to three times weekly. The physician also stated that OSA is also a possibility, in view of the Veteran's spouse's description and his daytime sleepiness. Subsequently, the Veteran's OSA was diagnosed following a May 2016 sleep study which indicated moderate OSA. A VA medical opinion was obtained in April 2017. The examiner opined that the Veteran's OSA was less likely than not incurred in or caused by the claimed in-service injury, event or illness and specifically addressed the Veteran's contentions regarding environmental exposure. The examiner noted that no issues were noted on the Veteran's separation examination and stated that there was no mention of sleep issues or anything suggestive or supportive of an OSA diagnosis in the Veteran's STRs. The examiner noted the Veteran's report of trouble sleeping in 2013 and in a few subsequent treatment records. The examiner noted the Veteran's lay report of snoring and experiencing insomnia during service but stated that sleep disturbance and snoring are both nonspecific and do not indicate that the Veteran had OSA during service. The examiner stated that the record indicates that the Veteran's sleep difficulties are likely related to his mental health conditions. The examiner acknowledged the Veteran's report of environmental exposures but stated that environmental exposures are not a known cause of OSA. The examiner explained that OSA is typically related to genetic factors from neck anatomy and stated that they saw no evidence of any allergic rhinitis or nasal septal issues that might have contributed to the Veteran's OSA. The examiner further stated that OSA is a diagnosed condition with known etiology which was not caused by any exposure event experienced during service as exposures do not cause OSA. An addendum VA medical opinion was obtained in July 2019. The VA examiner opined that the Veteran's OSA was less likely than not proximately due to or the result of the Veteran's service-connected PTSD. The examiner stated that while the prevalence of sleep apnea is increased in those also with PTSD, there is no evidence based in the medical literature to support a causal relationship between PTSD and sleep apnea. The examiner addressed the medical studies that the Veteran submitted in February 2018: Association of Psychiatric Disorders and Sleep Apnea in a Large Cohort; Sleep Disorders and Associated Medical Comorbidities in Active Duty Military Personnel; and Obstructive Sleep Apnea and Posttraumatic Stress Disorder among OEF/OIF/OND Veterans. The examiner acknowledged that all confirm the co-existence between PTSD and sleep apnea as well as the increased prevalence of sleep apnea in those with PTSD but stated that, as with the weight of the evidence in the medical literature, no causality is established between PTSD and sleep apnea. The examiner stated that the increased prevalence and the comorbidity of PTSD and sleep apnea in the medical literature do not correlate to or establish causation. The examiner explained that PTSD, anxiety and depression are mental health disorder while sleep apnea is a physical disorder of upper airway dysfunction/collapse unrelated in etiology to mental health disorders, including PTSD. The examiner referenced a medical study on OSA in adults. The Board finds that the evidence is in at least equipoise as to whether the diagnosed OSA arose during active service. The Veteran reported first experiencing insomnia and snoring during active service; his wife reported that the Veteran has experienced snoring, low energy, inhibited concentration, diminished libido, and daytime sleepiness; he has been diagnosed with moderate obstructive sleep apnea on a post service private sleep study; and a VA sleep medicine physician noted the Veteran's history of long-standing insomnia since service and stated that "there is also a possibility of obstructive sleep apnea in view of wife's description and [the Veteran's] daytime sleepiness." Notably, this statement by the VA physician was made prior to the Veteran's diagnosis. The Board notes that the April 2017 VA examiner provided a negative nexus opinion; however, the examiner failed to reconcile the significant evidence weighing in favor of the claim, including the April 2016 statement from a VA sleep medicine physician suggesting that the Veteran's longstanding insomnia and other associated symptoms, which were present during active service, could be symptoms of the Veteran's subsequently-diagnosed OSA. (Continued on the next page) As such, the Board finds that the evidence is in at least equipoise as to whether the diagnosed obstructive sleep apnea originated during active service. Resolving all reasonable doubt in the Veteran's favor, the Board concludes that service connection is warranted for obstructive sleep apnea. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Modesto, Victor 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.