Citation Nr: 21030457 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 14-30 451 DATE: May 19, 2021 ORDER Entitlement to service connection for sleep apnea is denied. FINDING OF FACT The Veteran's sleep apnea did not manifest during service and is not otherwise related to service or a service-connected disability. CONCLUSION OF LAW The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 2001 to September 2001, January 2004 to May 2005, and April 2009 to May 2010. He also served with the Army Reserves. This matter comes before the Board of Veterans' Appeals (Board) from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In June 2018, the Veteran appeared via videoconference and provided testimony before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. The Board remanded this matter in December 2018 and December 2020 for additional development, which has been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for sleep apnea is denied. The Veteran contends that he was diagnosed with sleep apnea during active service. See VA Form 9, June 2014. Alternatively, he contends that his symptoms of sleep apnea began during active service, to include due to his exposure to toxic fumes from burn pits while stationed overseas. See Board Transcript, page 4. Also raised during the pendency of the claim is whether the Veteran's sleep apnea is due to or has been aggravated by his service-connected posttraumatic stress disorder (PTSD). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 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). Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease or whether the disability is due to or has been aggravated by the Veteran's service-connected PTSD. The Board concludes that while the Veteran has a current diagnosis of obstructive sleep apnea, and evidence shows that he was exposed to burn pits while stationed overseas, the preponderance of the evidence weighs against finding that his sleep apnea began during service or is otherwise related to an in-service injury, event, or disease. The evidence also weighs against a finding that the sleep apnea is due to or has been aggravated by his service-connected PTSD. During his June 2018 hearing before the Board, the Veteran testified that his first wife noticed his snoring had worsened after his tour from 2004 to 2005. See Board Transcript, pages 3, 8. After his second tour, his second wife noticed that he was snoring badly and occasionally stopped breathing during sleep. Id. He testified that during service, people told him he was snoring and that it was getting worse. Some told him that he had stopped breathing in his sleep. Id. at 3. He noted that during his first tour, he oversaw a landfill and was exposed to burn pits. Id. at 3-4. He stated that he did not wait long to seek treatment after returning from deployment in 2010; however, he had a long waiting period to get into a sleep study. He was diagnosed with sleep apnea in 2011 or 2012. Id. In August 2018, the Veteran submitted a witness statement from T.J.H. indicating that they served together from 2004 to 2005. T.J.H. noticed that the Veteran snored several nights, which the Veteran had not done prior to deployment. During the second deployment from 2009 to 2010, he noticed that the Veteran's snoring had worsened and that he would stop breathing in his sleep. During the second tour, he had to wake the Veteran during the night to make sure he was ok. A witness statement from M.P. indicates that he and the Veteran served together from 2009 to 2010 and were roommates. M.P. said the Veteran snored and would stop breathing during sleep. He had to wake the Veteran to make sure he was ok. The breathing issue started about halfway through the deployment. M.P. stated that at times the Veteran woke him with his gasping and inability to catch his breath. M.P. said he advised the Veteran to have a sleep study completed. Service treatment records do not show sleep related complaints such as those described by the Veteran, his wives, T.J.H., and M.P. At most, June 2009 treatment records show he had problems sleeping related to finding a fellow serviceman after the man had committed suicide. The March 2010 post-deployment assessment shows the Veteran indicated problems sleeping or still feeling tired after sleeping. He was referred to behavioral health for sleep difficulty. The August 2010 post-deployment reassessment showed no indication of sleep problems. The first indication of a sleep disability is noted in December 2011 VA treatment records. At that time, the Veteran's girlfriend reported that he snored and would stop breathing during the night. She had to wake him to get him to breathe. A sleep study was scheduled, and it occurred in May 2012. The sleep study showed an impression of central sleep apnea due to medication and "positionals" as well as upper airway resistance syndrome. In May 2014, VA obtained an opinion from an examiner addressing secondary service connection. The examiner reviewed the claims file and found that the Veteran's sleep apnea was less likely than not proximately due to or the result of the Veteran's service-connected PTSD. The examiner indicated that the sleep study showed a central component to the Veteran's sleep apnea which could be aggravated by sedating medications; however, the Veteran's medication list did not show drugs prescribed for PTSD which would have caused significant sedation and caused or aggravated his sleep apnea. The medical records showed a significantly overweight condition which could cause and aggravate sleep apnea, and which was not secondary to PTSD. The Veteran had a VA examination in November 2019. While the examiner provided an etiology opinion, the examiner did not consider lay statements asserting that the Veteran's sleep symptoms started during service. Thus, the opinion is inadequate for rating purposes. In December 2020, the November 2019 VA examiner provided an addendum opinion indicating that the Veteran's sleep apnea was less likely than not related to service. The examiner found that the Veteran's non-service-connected (NSC) conditions were more than 50 percent responsible for his sleep apnea condition. His NSC conditions include congenital ear, nose, and throat (ENT) anatomy causing upper airway obstruction; obesity aggravating his congenital upper airway narrowing; asthma; and smoking aggravating his upper airway. The examiner stated that the symptoms described in lay statements may or may not be related to sleep apnea and may be due to other factors. The examiner found no documentation that sleep apnea caused them and that to assume so would be mere speculation. The Veteran had no documentation from a medical provider of sleep apnea during service. Further, the Veteran's exposure to dust, gas fumes, and/or burn pits while deployed was not severe enough or prolonged enough to cause sleep apnea. The examiner stated that there is no good temporal relationship between the Veteran's dust, gas, and burn pit exposure in service and the onset of sleep apnea in 2012. The examiner also pointed out that the accepted medical literature indicates that exposure to dust, fumes, and burn pits is not a known cause of chronic persistent sleep apnea. Thus, while the Veteran had exposure to burn pit smoke and contaminants while serving in Southwest Asia, his sleep apnea continued long after exposure stopped. The examiner stated that one would expect that once exposure stopped that the condition would resolve or at least improve, which had not happened in this case. The examiner opined that the Veteran's sleep apnea was most likely caused by his body habitus causing anatomic obstruction of his upper airway, excessive body weight, and obesity. The examiner noted that while the Veteran has lost a significant amount of weight since the onset of his disability, his sleep apnea has continued due to his congenital upper airway obstruction, non-compliance with the use of the C-PAP, NSC tobacco use, and NSC asthma. Based on the evidence, the Board finds that service connection for sleep apnea is not warranted. As noted above, service treatment records do not show sleep apnea or symptoms during service. While the Veteran and his witnesses are competent to report his snoring and breathing habits during and since service, as laypersons, they are not competent to provide a diagnosis or determine whether these symptoms were manifestations of sleep apnea. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, the December 2020 VA examiner opined that the Veteran's sleep apnea is not at least as likely as not related to an in-service injury, event, or disease, including his exposure to contaminants from burn pits. The examiner supported the opinion with a complete rationale, to include discussion of the lay reported symptoms. The examiner's opinion is probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Finally, the evidence does not support secondary service connection between sleep apnea and PTSD. As noted in the May 2014 opinion, while the sleep study showed a central component to the Veteran's sleep apnea which could be aggravated by sedating medications, the Veteran's medication list did not show drugs prescribed for PTSD which would have caused significant sedation and caused or aggravated his sleep apnea. The examiner found no relationship between the Veteran's sleep apnea and PTSD. Again, the examiner's opinion is probative because it is based on an accurate medical history, and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Based on the foregoing, the Board finds that the preponderance of the evidence is against the claim. Therefore, the doctrine of reasonable doubt is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The appeal is denied. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. G. Alderman, 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.