Citation Nr: 21029847 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 16-27 776 DATE: May 17, 2021 ORDER Entitlement to service connection for sleep apnea, to include as secondary to a service-connected disability or disabilities, is denied. FINDING OF FACT Sleep apnea did not have its onset during active service and is not otherwise related to active service and is not caused or aggravated by a service-connected disability or disabilities. CONCLUSION OF LAW The criteria for service connection for sleep apnea, to include as secondary to a service-connected disability or disabilities, 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 from July 1981 to July 1985 and from September 1986 to January 2005. The Department of Veterans Affairs (VA) is grateful for his service. In October 2018, the Board remanded the claim for service connection for sleep apnea for an addendum medical opinion addressing both direct and secondary service connection. The Board finds there was substantial compliance with this development. The claim now returns to the Board for further appellate review. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by 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. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). A claim for secondary service connection generally requires competent evidence of a causal relationship between the service-connected disability and the nonservice-connected disease or injury. Jones v. Brown, 7 Vet. App. 134 (1994). The United States Court of Appeals for Veterans Claims (Court) has held that there must be evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Entitlement to service connection for sleep apnea. In the October 2012 Notice of Disagreement (NOD), the Veteran contended he was initially diagnosed with sleep apnea in 1996 abroad the USS Jack Williams while being treated for temporomandibular (TMJ) pain. He did not follow up on this diagnosis until he returned to shore. The diagnosis was mentioned to him several times during his military service by treating physicians, but no sleep study was ever conducted. The initial discovery was entered into the shipboard health management system, but it does not appear in the hard copy records. It is unclear to the Veteran why a sleep study was never ordered, but he finds it to be inconceivable that any medical professional would think that this type of condition "just popped up" and would not be something that developed over years. He also alleged that the effects of his sleep apnea had worsened his service-connected cluster headaches. On the June 2016 VA Form 9, Appeal to the Board, the Veteran contended the VA examinations were biased because they did not consider the full extent of his conditions. He again stated that sleep apnea was mentioned to him by military medical providers on a couple of occasions. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim for service connection for sleep apnea, to include as secondary to a service-connected disability or disabilities. The reasons follow. As to evidence of a current disability, a December 2009 private treatment record from Dr. Charles Rust shows treatment for obstructive sleep apnea (OSA). Therefore, the facts establish that the first element of a service-connection claim is met. As to evidence of an in-service disease or injury, the service treatment records (STRs) do not show that the Veteran was diagnosed with sleep apnea or complained of sleep apnea symptoms during service. For example, a June 1995 sea duty screening Report of Medical History (RMH) shows the Veteran marked "no" for whether he had a history of frequent trouble sleeping and shortness of breath. On the June 1995 sea duty screening Report of Medical Examination (RME), all body systems were clinically evaluated as normal. On the August 1996 Chronological Record of Medical Care, the health record abroad the USS Jack Williams is noted as being in proper order and verified by the signing medical provider. The provider marked "no" for any long-term medical problems. The Veteran alleges he was initially diagnosed with sleep apnea abroad this ship in 1996, but such notation did not make it into his paper file. The April 2001 periodic RME documents all the Veteran's body systems were clinically evaluated as normal. The April 2001 period RMH shows the Veteran marked "no" for whether he had a history of frequent trouble sleeping, but he marked "yes" for whether he had a history of shortness of breath. However, the notation for shortness of breath appears to be related to either or both asthma and chest pains, which are documented in the physician's summary. The Veteran did not write he was previously diagnosed with sleep apnea. On the September 2004 retirement Report of Medical Assessment (RMA), the Veteran marked that his health was the same since his last examination in April 2001. He wrote that he was being treated for hypertension and fasciitis. A diagnosis of sleep apnea or documentation of sleep-related symptoms is not shown in the service treatment records. While the Veteran contends that he was told by medical providers in service a couple or several times that he had sleep apnea, the Veteran's STRs are silent for any complaints of sleep trouble. The STRs are similarly silent for any mention of sleep apnea being discussed with military medical professionals. Moreover, a diagnosis of sleep apnea requires a sleep study, which the Veteran did not undergo in service; therefore, a definitive diagnosis could not have been made while he was in service. The STRs show the Veteran was treated for many conditions between 1996 and service discharge, such as hypertension, foot pain, and headaches, and thus it seems unlikely sleep apnea or similar sleep concerns would not have been recorded in the record or reported by the Veteran on his Report of Medical History, RMEs, and the RMA. Even if the initial diagnosis of sleep apnea in 1996 did not make it into his shipboard medical file, the later almost 10 years without any such notation remain unexplained. Because the Veteran repeatedly denied a history of trouble sleeping and did not mention sleep apnea during the nine years in service after he alleges he was diagnosed in 1996, the Board does not find the Veteran's contentions that medical providers discussed sleep apnea with him a couple or several times or diagnosed him with sleep apnea in service to be credible. Thus, the preponderance of the evidence is against an in-service disease or injury, and the second element of a service-connection claim is not met. The Board also finds that the preponderance of the evidence is against a nexus between the current disability and service. Notably, the post service treatment records resemble the service treatment records in that the Veteran was seen regularly following service discharge for multiple medical complaints, but which did not include sleep apnea until December 2009. The December 2009 private treatment record from Dr. Charles Rust documents the Veteran reported having a history of OSA that had been noted for the past 10 years. The Veteran contends in the October 2012 NOD that he had been treated for sleep apnea by Dr. Rust since leaving active duty; however, the private medical records from Dr. Rust, which begin in March 2006, are silent for a mention of OSA until December 2009. In fact, when being treated in March 2006 (twice), November 2006, September 2007, October 2007, November 2008, December 2008, and February 2009a period of almost three yearswhen Dr. Rust performed a review of systems at each of these appointments, the Veteran denied experiencing respiratory symptoms and sleep disturbances. When treated for the first time by Dr. Rust on March 1, 2006 as a new patient, the Veteran reported a past medical history of hypertension. Sleep apnea was not reported. When seen in December 2009, the Veteran then reported disrupted sleep with loud snoring that awakened him from sleep with a sensation of being out of breath and snoring, as reported by his spouse. These facts do not support the allegation that Dr. Rust had been treating the Veteran for OSA since service discharge. Moreover, the notation within the December 2009 treatment record that OSA was noted for 10 years does not match the previously discussed STRs, which are silent for diagnosis of or treatment for sleep apnea. This description within the December 2009 treatment record is also inconsistent with Dr. Rust's earlier treatment records. For example, the Veteran had been seen regularly by Dr. Rust since March 2006, and this was the first time he reported this medical history, which included his reporting respiratory symptoms and sleep disturbances at that time, but he had denied experiencing these same symptoms approximately eight times in three years. Dr. Rust did not order a sleep study until December 2009. These facts do not lend to a finding that the Veteran had sleep apnea since service discharge or that Dr. Rust had been treating him for sleep apnea since March 2006. The finding that sleep apnea did not have its onset in service is supported by the July 2019 VA examiner's opinion, wherein the examiner opined that objective review of military STRs and available records within two years of separation was absent of complaints related to OSA, concern by treatment providers for OSA, and testing for OSA or diagnosis of OSA. The examiner documented the records reviewed and what was documented within these records, which were accurate descriptions of the evidence. The Board finds the July 2019 VA medical opinion has high probative value because the examiner reviewed the claims file, cited to medical records, and provided an opinion that included a rationale that was based on evidence in the file and medical principles. The opinion is consistent with what is documented in the medical records, including the post-service medical records, which show the Veteran denying respiratory symptoms and sleep disturbances for almost five years following service. At the present time, there is no competent evidence of a positive nexus to weigh against this medical opinion. VA obtained secondary medical opinions likely due to the allegation the Veteran had made that his sleep apnea had "directly worsened" his service-connected cluster headaches, which, technically, is not how secondary service connection works. Secondary service connection applies when a service-connected disability causes or aggravates a non-service-connected disability. Here, the Veteran was alleging that a non-service-connected disability was aggravating a service-connected disability. Nevertheless, the Board will consider secondary service connection, as the agency of original jurisdiction discussed it, as did the Board in the October 2018 remand. The Veteran is service connected for hypertension, cluster headaches, and erectile dysfunction. The preponderance of the evidence is against a finding that a service-connected disability or disabilities causes or aggravates OSA. Within the February 2016 VA examination report, the examiner stated there was no epidemiologic evidence of a causal relationship between cluster headaches and OSA. Within the July 2019 VA examination report, the examiner concluded there is not a pathophysiologic mechanism for the Veteran's service-connected disabilities to cause or aggravate OSA. She explained that OSA is essentially a collapse of the posterior upper airway during sleep. She added that hypertension, headache, and erectile dysfunction do not cause this to happen. She also noted that risks for OSA are advancing age, male gender, obesity, and craniofacial morphology or upper airway soft tissue abnormalities. These medical opinions are evidence against a finding that a service-connected disability or disabilities cause or aggravate OSA. While neither examiner specifically addressed "aggravation," the Board finds that these opinions are distinguishable from the holding in El-Amin v. Shinseki, 26 Vet. App. 136 (2013). In that case, the Court found that the examiner's opinion that it was "more likely than not that the veteran's alcohol abuse was related to factors other than the veteran's post-traumatic stress disorder" did not rule out the possibility that the veteran's service-connected PTSD aggravated his alcohol abuse to some degree. Id. In contrast, here, the Board finds that the examiners' rationales clearly demonstrate the lack of a cause-and-effect relationship between the Veteran's service-connected disabilities and OSA. This indication within both examiners' rationales, unlike that of the examiner in El-Amin, ruled out the possibility that the service-connected disability or disabilities may aggravate to some degree the non-service-connected OSA. Accordingly, the preponderance of the evidence is against a finding that OSA was caused or aggravated by one or more of the Veteran's service-connected disabilities. Although the Veteran noted his spouse could attest to snoring and related breathing troubles during sleep, the Veteran's spouse did not provide a lay statement discussing his sleep or any related breathing troubles. Regardless, the allegation by the Veteran is consistent with what Dr. Rust documented in the December 2009 treatment record that the Veteran's wife told the Veteran he stopped breathing at times while sleeping. This does not establish a nexus between OSA and service. While the Veteran has attempted to establish a nexus through his own lay assertions that his OSA is related to service, he is not competent to offer opinions as to the etiology, as medical expertise is required. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence. At the present time, there is no competent and credible evidence of a nexus between OSA and service or a service-connected disability or disabilities to weigh against the February 2016 and July 2019 negative opinions. The Veteran had alleged in the VA Form 9 that he felt the examiners were biased against him. At that time, he had perfected an appeal for multiple claims, including claims for increased ratings for his service-connected disabilities (which issues were decided in the October 2018 Board decision). To the extent that he alleged that the examiner who provided the sleep apnea examination was biased against him, the Board could not detect bias in reading through the examination report. That examiner addressed secondary service connection only, and the opinion made matched the July 2019 VA opinion, which was that there was no pathophysiologic mechanism for the service-connected headaches to cause or aggravate the OSA. As both examiners reached the same conclusion as to whether there was a relationship between the Veteran's service-connected headaches and OSA, the Board does not find bias in the February 2016 medical opinion. For all the reasons described above, the Board finds the preponderance of the evidence is against the Veteran's claim for service connection for sleep apnea. There is no reasonable doubt to be resolved, and the claim for service connection is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. McDaniels, 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.