Citation Nr: 21029207 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-50 420 DATE: May 12, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to posttraumatic stress disorder (PTSD), 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 OSA 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 July 1983 to May 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in August 2019. A transcript of the hearing is of record. The Board issued a remand in December 2020 instructing the RO to obtain an addendum opinion 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 a December 2020 VA examination and medical opinion. The Board finds the RO substantially complied with the December 2020 remand directives. Entitlement to service connection for OSA. The Veteran contends that he developed OSA as a result of his military service. During the August 2019 board hearing, the Veteran testified that he did not have issues with sleep apnea prior to service, but, in service, he began to experience snoring, sleep deprivation, and fatigue. See also August 2012 Statement. He stated that others complained about his snoring and he would fall asleep while driving a tank. He was kicked in the helmet once by someone who was frustrated with him falling asleep. He completed a sleep study sometime after 1999. The physician that performed it was able to find a correlation between his OSA and his military service. He also stated that his OSA may have been caused by his PTSD. 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. A January 1984 service treatment record (STR) showed the Veteran complied of headaches and nasal congestion. He reported that he snored so loud that he woke himself up. An August 1985 STR showed the Veteran complained about not being able to stay awake for months and that he slept too much. He was assessed with paralysis and weakness. It was noted that he had no history of narcolepsy. He was counseled about hobbies, diet, and exercise. Post-service treatment records show the Veteran did not develop OSA within one year after discharge from service, but he does have a current disability. See e.g., April 2001 Virginia Sleep Disorder Center (obstructive sleep apnea); October 2013 Primary Care Note (sleep apnea). The Veteran was afforded a VA examination in May 2016. The diagnosis of OSA was confirmed. The Veteran reported a history of loud snoring since 1983-84 and he stated that he went to sick call several times in service for his snoring. He denied any sinus or nasal condition. First sleep study was in 2001. He was positive for OSA. At the time of the examination, he was using the CPAP machine. The examiner opined that it was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the Veteran had a personal history of OSA, but objective evidence of OSA was not found in the STR. The Veteran submitted a private medical opinion in September 2016 to consider whether his OSA was secondary to his service-connected PTSD. The examiner wrote that the Veteran was treated with OSA with positive airway pressure therapy. It was possible, or at least as likely than not, that OSA was associated with or related to service-connected PTSD. However, a direct causal relationship could not be definitively ascertained. An addendum VA opinion was obtained in December 2016 to clarify the previous medical opinions. The clinician opined that the Veteran's sleep apnea was less likely than not (less than 50 percent) proximately due to or the result of PTSD. The examiner wrote that OSA occurred when the muscles in the back of the throat relax too much to allow normal breathing. These muscles support structures including the soft palate, the uvula a triangular piece of tissue hanging from the soft palate, the tonsils, and the tongue. When the muscles relax, the airway narrows or closes as you breathe in and breathing may be inadequate for 10 to 20 seconds. This results in the characteristic apneas and hypopneas caused by repetitive collapse of the upper airway during sleep. There are several risk factors for OSA such as obesity, large neck, and narrow airway. However, the medical literature does not mention PTSD as a cause or risk factor for sleep apnea. This makes sense considering that PTSD has no effect on the muscles of the airway resulting in sleep apnea. While there have been several articles referencing the presence of sleep apnea in individuals with PTSD, there is still no medical evidence showing that PTSD causes sleep apnea. In this case, the Veteran had the risk factors of his obesity, male sex, cigarette smoking, and a narrowed airway which either alone or in concert would have predisposed this individual to develop the sleep apnea condition. In a December 2019 remand, the Board found that the May 2016 VA opinion to be inadequate, because it failed to consider the additional August 1985 service treatment record that showed that the Veteran slept too much and was unable to stay awake for 4 months. Therefore, this opinion was based on an inaccurate factual premise. Also, the examiner noted that the Veteran reported a personal history of sleep apnea in service, but that there was no evidence of a sleep apnea condition found. The examiner failed to address the Veteran's consistent description of his symptoms in service and following service of snoring and drowsiness. The Board noted that the Veteran submitted a September 2016 medical opinion from a private physician with a positive opinion. This opinion found that the Veteran's sleep apnea was related to his PTSD but the medical opinion did not express the accurate degree of certainty. The law provides that service connection may not be based on a resort to speculation or remote possibility. 38 C.F.R. § 3.102; Obert v. Brown, 5 Vet. App. 30, 33 (1995). A medical opinion that is based on speculation without supporting clinical data does not provide the required degree of certainty. Stefl v. Nicholson, 21 Vet. App. 120 (2007). Therefore, the Board did not find this medical opinion to be probative. In addition, in a subsequent December 2016 VA opinion, this determination was negated. Neither of these opinions addressed the initial question of whether the Veteran's sleep apnea was caused directly by service. Therefore, the claim was remanded for an additional medical opinion which was obtained in March 2020. The March 2020 medical opinion included the rationale that "no objective evidence of obstructive sleep apnea diagnosis/treatment was found documented on currently available STRs." The Board found this medical opinion to be inadequate as well. Like the May 2016 VA examination, the examiner failed to consider the additional August 1985 service treatment record that showed the Veteran slept too much and was unable to stay awake for 4 months. Again, the claim was remanded for a new VA examination. A final VA examination was afforded in December 2020. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner wrote that the Veteran's lay statement states that he was only sleeping a few hours a night due to field exercises. This would not be a cause of OSA. OSA is an anatomic issue and is not caused by sleep deprivation due to not sleeping an adequate number of hours. As for his visit in 1984, the examiner could not say without mere speculation that he could have had OSA at that time. The STR note that the cause of his snoring was from congestion, and he was given medications for congestion. If congestion was the cause, I would say that his service was less likely than not the cause of his OSA. 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. Although there was a notation about snoring, there was no evidence of a complaint, diagnosis, or treatment of OSA while in-service. The in-service complaint of snoring was noted to be associated with congestion. Snoring is not sleep apnea. The medical opinion submitted by the Veteran was speculative and did not express a sufficient degree of certainty. In addition, the VA examination did not support a causal relationship between OSA and PTSD. 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.