Citation Nr: 21029692 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 16-21 720 DATE: May 14, 2021 ORDER Entitlement to service connection for a sleep disorder, to include as secondary to posttraumatic stress disorder (PTSD) with major depressive disorder (MDD), residuals of a traumatic brain injury (TBI) and/or residuals of a traumatic nasal fracture, is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's sleep apnea was secondary to service-connected PTSD with MDD, residuals of a TBI, and/or residuals of a traumatic nasal fracture, or was otherwise related to an in-service injury or disease, to include his conceded exposures to environmental hazards in Southwest Asia. CONCLUSION OF LAW The criteria for service connection for a sleep disorder, to include as secondary to PTSD with MDD, residuals of a TBI and/or residuals of a traumatic nasal fracture, for substitution purposes have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1986 to April 1993. This case is before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office. In May 2019, the Board reopened the Veteran's service connection claim for a sleep disorder and remanded the matter for further development. Unfortunately, the Veteran died in November 2020, and his appeal was dismissed by the Board in December 2020 due to his death. Subsequently, the appellant has been substituted for the Veteran's service connection claim on appeal. Now the matter is before the Board. A veteran is entitled to VA disability compensation if there is disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110, 1131 (2012). To establish an entitlement to service connection for a disability, a veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to or the result of an established service-connected disability. 38 C.F.R. § 3.310 (2020). This includes disability made chronically worse by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (2012). For VA to deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App., at 54. The Veteran contended that his sleep disorder was due to his in-service exposure to environmental hazards during the Gulf War and/or secondary to his service-connected disabilities. The Board will first examine whether the Veteran was entitled to direct service connection for a sleep disorder. The evidence of record shows that the Veteran had a current diagnosis of severe obstructive sleep apnea during the entire period on appeal. See e.g., January 2006 Polysomnography Report. Thus, the first Shedden element for service connection is met. As to the in-service incurrence of the Veteran's sleep apnea, his service treatment record (STR) does not show complaints, diagnosis, or treatment related to a sleeping disorder. However, the Veteran's exposure to environmental hazards is conceded as the evidence confirms his service in Southwest Asia. Thus, the second Shedden element for service connection is also met. However, the Board notes that an August 2020 VA examiner opined that it is less likely than not that the Veteran's obstructive sleep apnea had its onset during service or is otherwise etiologically related to his active duty service, including as a result of environmental exposures during his Persian Gulf service. The examiner noted that no sleep complaints were found in the Veteran's STR and the Veteran specifically denied having sleeping problems on a 1989 physical examination. The examiner provided that the observation of the Veteran's "sleep[ing] a lot" was noted only during an acute illness in December 1988, which is a typical self-limited symptom during an illness. The examiner reviewed the Veteran's STR for possible symptoms associated with sleep apnea and found that the Veteran had fatigue complaints while he was in Fort Irwin, California in October 1991. However, the examiner noted that lab results at the time showed elevated sodium and chloride as well as ketones in the urine, which are most consistent with both acute dehydration and insufficient food intake. The examiner pointed out that fatigue symptoms did not reappear in the STR, and the later STR shows multiple treatments related to playing basketball and softball which is not consistent with activities of a chronically sleep-deprived or fatigued individual. The examiner addressed the Veteran's assertion of an in-service onset of his snoring symptoms and stated that snoring was not a symptom the Veteran had included on a 2009 sleep study when providing history of symptoms, and very little snoring was found during the 2009 sleep study. Further, the examiner provided that Institute of Medicine's have found inadequate/insufficient evidence to determine an association between sleep apnea and exposures to environmental hazards during the Gulf War, and such link is not well-accepted in the general medical community. Moreover, the examiner opined that it is less likely than not the Veteran's obstructive sleep apnea is proximately due to his PTSD with MDD, residuals of a TBI, and residuals of a traumatic nasal fracture. The examiner stated that the current consensus opinion in the generally accepted medical literature remains unclear whether there is an increased prevalence of obstructive sleep apnea in PTSD although some studies have suggested it. The examiner added that even an increased prevalence, if present, alone would not be demonstrative of causality for PTSD or MDD. As to the association between sleep apnea and residuals of a TBI, the examiner provided that TBI-related sleep apnea is identified on sleep studies as "central" sleep apnea without respiratory effort rather than obstructed respiration with respiratory efforts, which was not found on the Veteran's sleep studies. Also, sleep apnea caused by a TBI is typically associated with significant unambiguous brain injury and not momentary loss of consciousness. As to the Veteran's residuals of a traumatic nasal fracture, the examiner noted that some of the well-established risk factors of sleep apnea, such as abnormal maxillary, short mandibular size, wide craniofacial base, and tonsillar and adenoid hypertrophy, does not involve nose or nasal septum. The examiner provided that nasal congestion, regardless of its cause, is a less well-established risk factor for obstructive sleep apnea according to medical literature and general medical community. The examiner also addressed a comment by another VA examiner in 2012 who has noted that the Veteran's nasal obstruction on both sides of 50 percent or more due to his nasal fracture makes CPAP less effective. The examiner stated that the 2012 examiner's statement is not well-reasoned because it was based on the presumption that the Veteran was a purely nasal breather and cannot/does not open his mouth at all while sleeping. The examiner explained that the mouth is equally effective in transmitting CPAP pressure to maintain patency in the soft tissues of the back of the throat. The examiner observed that the medical evidence around the time of 2012 VA examination showed "excellent responses to CPAP," and similar degree of obstruction was not found during a later VA examination for ear, nose, and throat conditions in 2017. Further, the examiner opined that it is less likely than not that the Veteran's obstructive sleep apnea was aggravated or worsened beyond its natural progression by his PTSD with MDD, TBI, and/or traumatic nasal fracture. The examiner provided that there is no evidence of the Veteran's PTSD with MDD and residuals of a TBI affecting his obstructive sleep apnea condition, and it is not well-accepted that those conditions aggravate an intrinsic obstructive sleep apnea. The examiner pointed out that the Veteran had CPAP treatment after the diagnosis and the record shows the Veteran had "excellent response to CPAP" and received regular routine replacements of CPAP accessories without evident issues. The examiner explained that well-established risk factors for the development of obstructive sleep apnea are older age, male gender, and obesity, and the Veteran's residuals of traumatic nasal fracture are unlikely to have contributed to or aggravated his obstructive sleep apnea condition to any significant degree. The Board finds the August 2020 VA opinions to be competent and credible evidence as the examiner rendered the opinion after a review of the Veteran's records and medical literature on the subject of obstructive sleep apnea. Based on above, the Board finds that the preponderance of the evidence is against finding that the Veteran's sleep apnea was secondary to service-connected PTSD with MDD, residuals of a TBI, and/or residuals of a traumatic nasal fracture, or was otherwise related to an in-service injury or disease, to include his conceded exposures to environmental hazards in Southwest Asia. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply here. Consequently, the appellant's claim of the Veteran's service connection for a sleep disorder, to include as secondary to his service-connected disabilities for substitution purposes must be denied. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. E. Kim, 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.