Citation Nr: 21030464 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 13-18 411 DATE: May 19, 2021 ORDER Service connection for obstructive sleep apnea (OSA) is denied. FINDING OF FACT OSA is not shown to be causally or etiologically related to any disease, injury, or incident during service, and is not caused or aggravated by service-connected posttraumatic stress disorder (PTSD). CONCLUSION OF LAW The criteria for service connection for OSA have not been 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 served on active duty from June 2000 to January 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in December 2012 by a Department of Veterans Affairs (VA) Regional Office. In December 2016, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In December 2017, the Board remanded the case for additional development and, in May 2019, denied service connection for OSA. Subsequently, the Veteran appealed such decision to the United States Court of Appeals for Veterans Claims (Court). In May 2020, the Court granted the Veteran's and the Secretary of VA's (the parties') Joint Motion for Remand (JMR), which vacated and remanded the Board's May 2019 decision. In November 2020, the Board remanded the appeal for additional development and it now returns for further appellate review. Entitlement to service connection for sleep apnea, to include as secondary to service-connected PTSD. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). The Veteran contends that his currently diagnosed OSA initially manifested during service as evidenced by in-service weight gain, elevated blood pressure readings, and symptoms of tiredness and snoring. In the alternative, he alleges that such is caused or aggravated by his service-connected PTSD. Therefore, the Veteran claims that service connection for OSA is warranted. As an initial matter, the Board notes that the record reflects a diagnosis of OSA by a March 2011 sleep study. However, with the exception of reporting feeling tired after sleeping in March 2004 and in a November 2004 post-deployment health assessment, the Veteran's service treatment records (STRs) are negative for any complaints, treatment, or diagnosis referable to OSA and he denied all relevant symptomatology. Additionally, VA's General Counsel has held that obesity cannot qualify as an in-service event to warrant service connection for another disability because it occurs over time and is based on various external and internal factors, as opposed to being a discrete incident or occurrence, or a series of discrete incidents or occurrences. VAOPGCPREC 1-2017. Furthermore, hypertension was not diagnosed until after service. Post-service treatment records reflect complaints of insomnia and nightmares related to the Veteran's PTSD, and indicated that a sleep study was recommended in November 2009, but was never performed. Rather, he underwent a sleep study in March 2011, which revealed a diagnosis of OSA. In October 2012, the Veteran was afforded a VA examination for OSA, at which time he reported the onset of symptoms of snoring, daytime sleepiness, and apneic episodes in 2011. Further, the examiner opined that such was less likely as not proximately due to or the result of his PTSD. In support of such opinion, he noted that relevant medical literature provided by the Mayo Clinic does not include PTSD as a cause of OSA. However, as the examiner did not address whether the Veteran's OSA was aggravated by his PTSD, or address direct service connection, which was first raised at the December 2016 hearing, the Board remanded the claim in December 2017 to obtain an addendum opinion. Accordingly, in January 2018, a VA examiner opined that it is not as likely as not that the Veteran's OSA had its onset during, or is otherwise related to, his military service. In support of such opinion, she noted that, at the October 2012 VA examination, the Veteran reported the onset of OSA symptoms in 2011 and, while he reported a variety of in-service symptoms, to include snoring, such was not proof that he had OSA. In this regard, the examiner explained that snoring can occur from several different causes, and is not OSA unless there is cessation in breathing. Thus, she found that there is insufficient evidence to link his OSA to service. The examiner further opined that it is not as likely as not that the Veteran's OSA is aggravated by his PTSD. In this regard, she explained that apnea is caused by upper airway issues, generally from obesity or anatomical structural defects, and, consequently, PTSD does not cause or worsen OSA. However, the parties to the May 2020 JMR found that such opinion was inadequate to decide the claim as the examiner did not address the Veteran's reports of feeling tired during service or the November 2004 post-deployment health assessment that noted that he still felt tired after sleeping. Thus, the Board remanded the appeal to obtain another addendum opinion to determine whether the Veteran's OSA was directly related to his military service. Consequently, an addendum opinion was obtained in December 2020. At such time, the examiner opined that the Veteran's OSA was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support thereof, he explained that the OSA typically caused a breathing pattern such as choking, gasping, or apnea. However, the Veteran reported during the examination that he was never informed of a breathing pattern like this while on active duty or within a reasonable time following separation. The Veteran also reported that he experienced frequent awakenings at night due to nightmares. Additionally, the examiner noted that not everyone who snores loudly suffers from sleep apnea. The examiner further reasoned that alternative conditions could cause recurrent sleep disturbances that caused similar daytime symptoms as OSA because they also resulted in non-restful sleep. He also indicated that risk factors for OSA included weight gain, which the Veteran was noted to have following separation from service. The examiner further explained that the Veteran's STRs did not indicate chronicity of sleep disturbances or symptoms consistent with sleep apnea as evidenced by the fact that he denied frequent trouble sleeping, memory loss or amnesia, or frequent headaches at the time of his separation from service. Thus, the examiner concluded that the Veteran's OSA was not related to his military service. The Board affords great probative weight to the October 2012 and January 2018 opinions in finding that the Veteran's OSA was not secondary to his PTSD, and the December 2020 opinion in finding that his OSA was not directly related to his military service as such considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Notably, there is no medical opinion to the contrary. In this regard, the Board notes that the Veteran has reported that his treating physician indicated that his OSA is related to his PTSD. However, as no rationale was provided with such reported opinion, it is afforded no probative weight. Id. The Board has also considered the Veteran's assertions as to the etiology of his OSA; however, as he is a lay person, he does not have the requisite training and experience necessary to address such a complex medical matter. Specifically, the etiology of such disorder involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Specifically, it involves knowledge of the anatomy of the upper respiratory system and, in regard to the secondary aspect of his claim, the impact a psychiatric disability has on such system. In this regard, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the etiology of OSA, such fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Thus, the Veteran's opinion as to the etiology of his OSA is not competent evidence and, consequently, is afforded no probative weight. Also, as his reports as to the onset of OSA-related symptoms have been inconsistent, such are likewise entitled to no probative weight. The Board also notes that, in his May 2021 Appellant's Post-Remand Brief, the Veteran's representative cited to several articles discussing a potential relationship between sleep apnea and PTSD. However, such are not accompanied by any corresponding clinical evidence specific to the Veteran and do not suggest a generic relationship between his OSA and his service-connected PTSD with a degree of certainty such that, under the facts of this specific case, reflects plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion. Consequently, such articles are not probative to the instant matter and, therefore, are insufficient to establish service connection for the Veteran's current disorders. Wallin v. West, 11 Vet. App. 509 (1998); Sacks v. West, 11 Vet. App. 314 (1998); Libertine v. Brown, 9 Vet. App. 521 (1996). Therefore, the Board finds that OSA is not shown to be causally or etiologically related to any disease, injury, or incident during service, and is not caused or aggravated by service-connected PTSD. Therefore, service connection for such disorder is not warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of service connection for OSA. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Clark, 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.