Citation Nr: 21030249 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 14-37 169 DATE: May 18, 2021 ORDER Entitlement to service connection for sleep apnea is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's sleep apnea began during active service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for sleep apnea are met. 38 U.S.C. §§ 101, 1110, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1998 to April 1999. He had additional service with the Air National Guard, to include verified periods of active duty for training (ACDUTRA) from June 1997 to November 1997 and from September 1999 to December 1999. This matter initially came before the Board of Veterans' Appeals (Board) from a March 2013 rating decision. In August 2018, the Board remanded this matter for further development. In December 2019, the Board denied the claim of service connection for sleep apnea. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In November 2020, the Court set aside the Board's December 2019 decision, in part, and remanded to the Board the issue of entitlement to service connection for sleep apnea for readjudication in compliance with directives specified in a November 2020 Joint Motion filed by counsel for the Veteran and VA. Entitlement to service connection for sleep apnea Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). "Active military, naval, or air service" includes active duty, any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred in the line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled from an injury incurred in the line of duty. 38 U.S.C. § 101 (21), (24); 38 C.F.R. § 3.6 (a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In this case, the Veteran contends that he has current sleep apnea that had its onset in service. The Board finds, for the following reasons, that the Veteran has a current diagnosis of sleep apnea, and that the evidence is at least evenly balanced as to whether this disability began during active service. Medical records, including the report of an April 2019 VA sleep apnea examination, show the Veteran experiences obstructive sleep apnea. Moreover, his service treatment records reflect that he was evaluated during a period of ACDUTRA in July 1997 for frequent awakening with gasping for breath, daytime sleepiness, and fatigue. He was diagnosed as having rule out sleep apnea. A sleep study was subsequently performed during service in March 1999 due to excessive daytime sleepiness, snoring, witnessed apneas, fatigue, and nonrestorative sleep. There was no evidence of significant sleep disordered breathing during the study, but mild snoring was noted. Therefore, current sleep apnea and sleep symptoms during service have been demonstrated. As for whether the Veteran's current sleep apnea is related to service, there are conflicting medical opinions. 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 Veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). The Board may favor one medical opinion over another, provided an adequate statement of reasons or bases is provided. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). In a September 2014 letter, R. Nash, MD reported, in pertinent part, that he reviewed the Veteran's relevant records. He noted that he did not have a copy of any normal sleep study, but he did review the July 1997 treatment record in which the Veteran was diagnosed as having rule out sleep apnea due to "textbook symptoms and presentation" and was recommended to have a sleep study. The sleep study was never done in a military setting, as there was no information about any such sleep study in the records reviewed by Dr. Nash. A sleep study was performed in 2003 and the Veteran was diagnosed as having moderate to severe obstructive sleep apnea. A trial of continuous positive airway pressure (CPAP) treatment was recommended, and the Veteran was on CPAP throughout Dr. Nash's association with him in the Air National Guard. A line of duty (LOD) was probably never done during that period of service because the diagnosis was longstanding and preceded that period. Dr. Nash further explained that the Veteran was "obviously . . . experiencing symptoms of [obstructive sleep apnea] when on active duty." The confirmatory study was not done by the military, so the Veteran pursued a private study which did confirm the diagnosis. Overall, Dr. Nash concluded that given the presenting symptoms and the eventual confirmation of the diagnosis, both by study and successful CPAP treatment, "there was little doubt that the [Veteran] had [obstructive sleep apnea] during active duty service." The physician who conducted the April 2019 VA sleep apnea examination opined that the Veteran's sleep apnea was not likely ("less likely than not"/"less than 50 percent probability") incurred in or caused by service. The examiner reasoned that the Veteran reported frequent awakening with gasping during service in July 1997. A sleep study was ordered and was completed in March 1999. The sleep study was negative for sleep apnea and the Veteran was not diagnosed as having sleep apnea until 2003, which was 4 years after his discharge from active duty. He had put on weight after his discharge from service (e.g., he weighed 212 pounds in 1994 and 245 pounds in 2004) and weighed 272 pounds with a body mass index (BMI) of 39 at the time of the April 2019 examination. In a September 2019 VA addendum note, a VA physician (W.A.J.) reported that it appeared that the Veteran was recommended for testing while on active duty relating to classic signs and symptoms of obstructive sleep apnea. The physician opined that it was "greater than 50 percent likely" that the Veteran's sleep apnea was related to his active duty service. There was no further explanation or rationale provided for this opinion. In a second VA addendum note dated in September 2019, physician W.A.J. reported that he had been treating the Veteran since May 2019 and that it appeared that his sleep apnea was diagnosed while on active duty. Based upon a review of the Veteran's records, it appeared to be "very evident" that his obstructive sleep apnea was related to his active service. There was no further explanation or rationale provided for this opinion. In a November 2020 letter, A. Canty, RN, BSN, CCM, LNC reported that she reviewed the Veteran's entire claims file and she listed sources of medical literature that were reviewed. She explained, in pertinent part, that obstructive sleep apnea is characterized by obstructive apneas, hypopneas, and/or respiratory effort-related arousals caused by repetitive collapse of the upper airway during sleep. The period when breathing is stopped or reduced, for ten seconds or more, is defined as apnea. This reduction in breathing is due to a complete or partial airway obstruction. Breathing resumes when a person has a brief arousal from sleep, of which they usually have no memory. Usually, the brain awakens from a deep sleep to a shallow level of sleep. Hypopnea is a partial decrease in air flow to a degree that is insufficient to meet the criteria for an apnea. The Veteran had 12 respiratory disturbances during his in-service sleep study, which were identified as hypopneas in the short period of time he slept during the study. Symptoms of obstructive sleep apnea include, but are not limited to, loud snoring, nocturnal gasping and/or choking, insomnia, frequent arousals from sleep, and disruption of sleep, which can result in daytime hypersomnolence (excessive daytime sleepiness), poor concentration, poor memory, fatigue, irritability, headaches, and depression. The physical examination is frequently normal, as there is usually no evidence of structural abnormalities. However, the examination may demonstrate a BMI greater than 30 kg per square meter (categorized as obese) and/or a narrowed oropharyngeal airway. A. Canty further explained that obstructive sleep apnea should be suspected whenever a patient presents with excessive daytime sleepiness, snoring, and choking or gasping during sleep. Sleep apnea can be evaluated by subjective methods, such as family/bed partner reports of observed symptoms and sleeping patterns, and self-report questionnaires. The diagnosis of sleep apnea involves measuring breathing during sleep. In-laboratory polysomnography (PSG) is considered the gold standard diagnostic test for sleep apnea. However, despite its reputation as the gold standard test, a negative in-laboratory polysomnography should be repeated if the clinical suspicion for sleep apnea is high. This is supported by several studies that have demonstrated significant night-to-night variability in sleep study results and is supported by the American Academy of Sleep Medicine (AASM) guidelines. Treatment of sleep apnea is not initiated until after a diagnosis has been confirmed via objective testing, such as polysomnography, which estimates the apnea-hypopnea index (AHI), a measure of the number of apnea or hypopnea events per hour during sleep. The AHI is used to diagnose and assess the severity of sleep apnea. Since AHI is the primary measure used by clinicians to diagnose sleep apnea, it is clear that a correct diagnostic procedure is fundamental to start efficacious therapy. Studies have demonstrated that a negative first-night study is insufficient to exclude sleep apnea in patients with one or more clinical markers of the disease. Studies have shown that the AHI from the second night is generally greater than the first-night AHI. Night-to-night variability of apneas on an overnight sleep study exists in individuals with documented sleep apnea. Studies have shown that this variability may be severe enough to miss the diagnosis of sleep apnea in individuals clinically at risk for the disease. Essentially, identification of sleep apnea in some individuals is reduced when only one sleep study is recorded for diagnosing sleep apnea. The night-to-night variability is thought to be due to the first-night effect, wherein individuals might find it difficult to sleep in a different environment. The first night is further characterized by a reduction in the quantity and quality of sleep. This is significant in the Veteran's case because he experienced difficulty sleeping during his in-service sleep study and exhibited a low sleep efficiency of 56 percent (the total time in bed actually spent in sleep). He did not undergo a repeat sleep study until April 2003. Individuals with sleep apnea experience respiratory events with greater frequency and severity while in the supine sleeping position. The Veteran's in-service sleep study demonstrated an AHI of 6.9 in the supine position, which would meet the diagnostic criteria of mild sleep apnea based on the AHI (an AHI of 5 to 15 denotes mild sleep apnea). Sometimes, the Respiratory Disturbance Index (RDI) is used to diagnose and assess the severity of sleep apnea. RDI, similar to AHI, measures the number of apnea and hypopnea events per hour during sleep, but also measures more subtle breathing irregularities that do not meet the criteria of an apnea or hypopnea (respiratory-effort related arousals). The Veteran's RDI was recorded during his April 2003 sleep study and he was diagnosed as having moderate to severe sleep apnea. A. Canty noted the opinion of the examiner who conducted the April 2019 VA examination and acknowledged that the Veteran's March 1999 sleep study indicated no evidence of significant sleep-disordered breathing. However, as explained above, studies have demonstrated that a negative first-night study is insufficient to exclude sleep apnea in patients with one or more clinical markers of the disease and the AASM guidelines recommend a repeat sleep study when clinical suspicion for sleep apnea is high. The Veteran had a significant clinical suspicion for sleep apnea as evidenced by his in-service symptoms of excessive daytime sleepiness with non-restorative sleep, frequent awakening with gasping for breath, snoring, witnessed apnea, and fatigue. These symptoms indicated an increased risk of moderate to severe sleep apnea. Such an increased risk is indicated by the presence of excessive daytime sleepiness and at least two of the following three criteria: habitual loud snoring, witnessed apnea or gasping or choking; or diagnosed hypertension. Moreover, A. Canty addressed the April 2019 examiner's rationale that the Veteran had been gaining weight after service and that sleep apnea increases progressively as BMI and associated markers (such as neck circumference) increase. While A. Canty agreed that increased BMI and neck circumference are risk factors of sleep apnea, the Veteran's neck circumference was not documented at the time of his 1999 and 2003 sleep studies. His neck circumference was 16.5 inches in May 1994, and a neck circumference greater than 17 inches in men is associated with increased risk of sleep apnea. It is speculative to state that an increased neck circumference was included in the Veteran's risk factors for sleep apnea, since his neck circumference was unknown during both his sleep studies. As for weight gain, the Veteran's weight increased to 256 pounds by the time of his December 2008 sleep study, but this weight gain was irrelevant because it occurred after the Veteran was already diagnosed with sleep apnea. His weight was of significance from the time of his military service until the date of his post-service sleep study in April 2003. His in-service weight ranged between 176 pounds and 214 pounds. There were no recorded weights at the time of his April 2003 sleep study, but his weight was 214 pounds in May 2003. This does not demonstrate evidence of a 50-pound weight gain or any significant weight gains from military discharge until the Veteran's sleep apnea diagnosis. It appears that the Veteran's weight remained fairly stable between his in-service sleep study in March 1999 and his post-service sleep study in April 2003. Overall, A. Canty agreed that the Veteran's weight was a risk factor of sleep apnea. However, it was impossible to determine which risk factor was the primary cause of his sleep apnea because sleep apnea is a multifactorial disease with a variety of identified causes and risk factors that often coexist and interact with other conditions and risk factors. Overall, the Veteran's sleep apnea was moderate to severe at the time of his diagnosis in April 2003, and this demonstrated that his sleep apnea was more than likely present for years prior to the objective sleep apnea diagnosis. Untreated sleep apnea can cause a progression of the condition, as evidenced by the severity of the Veteran's sleep apnea (moderate to severe). His service treatment records indicated in-service symptoms of sleep apnea as early as July 1997. Based on the above, A. Canty opined that the Veteran's sleep apnea first manifested while on active duty. The April 2019 and November 2020 opinions are based upon examination of the Veteran and/or a review of medical literature and the Veteran's treatment records, and consideration of his reported history, and they are accompanied by specific rationales that are consistent with the evidence of record. Therefore, the April 2019 and November 2020 opinions are adequate and entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). Dr. Nash's September 2014 opinion is of somewhat limited probative value because he did not discuss, and did not have an opportunity to review, the normal sleep study performed in March 1999. The September 2019 opinions are also of limited probative value because they are not accompanied by any specific explanations or rationales. Nevertheless, the September 2014 and September 2019 opinions all at least support the conclusion that the Veteran's current sleep apnea had its onset during service. (CONTINUED ON NEXT PAGE) In light of the above evidence, to include the sleep symptoms experienced by the Veteran in July 1997 and the medical opinions discussed above, the Board finds that the evidence is at least evenly balanced as to whether the current sleep apnea had its onset during the Veteran's period of ACDUTRA from June 1997 to November 1997. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for sleep apnea is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. T.D. JONES Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Elwood, 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.