Citation Nr: 21030804 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 12-32 333 DATE: May 19, 2021 ORDER Service connection for obstructive sleep apnea (OSA), to include as secondary to a service-connected disability, is denied. FINDING OF FACT The weight of the evidence is against finding that the Veteran's OSA is due to active duty service; or is otherwise secondary to his service-connected posttraumatic stress disorder (PTSD) or diabetes. CONCLUSION OF LAW The criteria for service connection for OSA have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1971 to July 1995. This appeal was previously before the Board in August 2017, May 2019, and October 2020. The August 2017 Board decision remanded the service connection claim for OSA to afford the Veteran a VA examination so that an opinion could be obtained regarding whether the Veteran's OSA was related to his active duty service. The May 2019 Board decision noted that the Veteran was provided negative nexus opinions by VA examiners in November and December 2017. However, the May 2019 Board decision also pointed out that the examiners did not appear to consider or discuss the Veteran's April 1995 separation examination, which indicated the Veteran was positive for PND (paroxysmal nocturnal dyspnea). The Veteran was afforded a VA examination in November 2019, which took into account the note of PND in the separation examination. However, the October 2020 Board decision noted that further development was required. The Board noted that the Veteran's representative's September 2020 appellate brief included citations to medical literature which showed a correlation between OSA and PTSD. The Board remanded to provide the Veteran with a new VA examination to determine whether there was an etiological relationship between the two disabilities. As such, this Board decision will discuss whether the October 2020 Board remand directives have been substantially complied with, and whether service connection for OSA is warranted on a direct or secondary basis. Service Connection Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disability which is aggravated by a service-connected disability. In order to prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) competent evidence establishing that the service-connected disability caused or aggravated the nonservice-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). Service connection for OSA is denied. The Veteran asserts that his OSA has been chronic since his active duty service. In the alternative, the Veteran asserts that his OSA is secondary to his service-connected psychiatric disorder, or his service-connected diabetes. See Appellate Brief received April 14, 2021. The Board concedes that the Veteran has been diagnosed with OSA. See Private Treatment Record dated November 11, 2009. Thus, the question is whether an in-service injury, illness, or event caused the Veteran's OSA; or whether his OSA is otherwise secondary to either his service-connected psychiatric disorder or his service connected diabetes. The Veteran's service treatment records (STRs) are silent for complaints of trouble sleeping. For example, an October 1986 medical history notes no sleeping difficulties and his April 1995 separation examination also noted no trouble sleeping. The Board notes that the Veteran's separation examination also noted positive PND, which will be discussed later in this decision. Following the August 2017 Board remand, the Veteran was afforded VA examinations in November and December 2017. After an in-person examination and a review of the Veteran's claims file, the November 2017 VA examiner provided a negative nexus opinion. The November 2017 VA examiner acknowledged that the Veteran's wife reported that she witnessed the Veteran display loud snoring with periods of no breathing and that he was diagnosed with OSA in 2009. However, the examiner explained that there was no evidence that the Veteran's current sleep apnea was due to his military service because he was diagnosed with OSA about 14 years after his separation from the military. After a review of the Veteran's claims file, the December 2017 VA examiner also provided a negative nexus opinion. The examiner explained that there was no medical evidence in the STRs of any sleep disorder while in service. Following the May 2019 Board remand, which noted the positive PND at the separation examination, the Veteran was afforded a VA examination in November 2019. After a review of the Veteran's claims file, the examiner provided a negative nexus opinion. The examiner reviewed the Veteran's separation examination report and noted that PND was noted in the mouth and throat section of the clinical evaluation. The lungs and chest section was marked as normal, which made it most likely that PND referred to post nasal drip because it was marked in the mouth and throat section. The examiner also noted that there was no evidence of paroxysmal nocturnal dyspnea during his active duty service. The examiner also acknowledged the Veteran's wife's statements as to snoring and breathing problems during his sleep, while on active duty service. The examiner explained that such symptoms are not diagnostic of OSA because it was not possible to retroactively diagnose OSA before a sleep study, as there is no way to determine if there were true apneic episodes that would meet the criteria for sleep apnea. Following the October 2020 Board remand, which sought a new VA examination to address whether OSA was secondary to his service-connected PTSD, the Veteran was afforded a VA examination in November 2020. After a review of the Veteran's claims file, to include the medical literature pointed out by the Veteran's representative, the examiner provided a negative nexus opinion. The examiner explained that PTSD and related psychological comorbidities do not cause OSA, which is established medical knowledge and practice. OSA is due to upper airway obstruction, associated with apneic episodes, which means that there is no anatomic or physiologic mechanism by which PTSD can cause or aggravate OSA. The examiner noted that the baseline for OSA has been established as mild, and the natural course of the condition is progression, with increased CPAP requirements. The examiner also took into account the Veteran's psychiatric medication, but explained that medications used to treat PTSD would act via a CNS pathway and not directly impact the mechanisms of OSA. Here, given that the Veteran's representative asserted that the Veteran's OSA was secondary to his service-connected PTSD, a new VA examination was ordered to address a 2015 study, cited to by the Veteran's representative, which found that Veteran's with PTSD had a higher risk of OSA. An addendum opinion was provided in November 2020, where the examiner reviewed the cited medical literature, and provided a medical opinion. As such, the Board finds that there has been substantial compliance with the October 2020 Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). To the extent that the Veteran believes that his OSA is the result of his service-connected PTSD, such a medical opinion requires medical expertise, and that determination cannot simply be made by lay observation alone; and the Veteran is not considered competent (meaning medically qualified by training or experience) to provide a medical opinion. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Given the Veteran's wife's lay statement asserting in-service OSA symptoms, his separation examination that showed a note of PND, and his assertion that his OSA is due to his service-connected PTSD, new VA examinations were ordered, which took into account the lay statements of record, his STRs and the medical literature his representative cited to in the August 2020 appellate brief. Unfortunately, the November 2017 VA examiner provided a negative nexus opinion regarding direct service connection; the November 2019 VA examiner found that PND most likely referred to post nasal drip, not paroxysmal nocturnal dyspnea; and the November 2020 VA examiner provided a negative nexus opinion regarding secondary service connection. The Board notes that the Veteran has not offered any medical opinion that would undermine any of the VA examiner's medical opinions of record, in regard to direct or secondary service connection. The Board acknowledges the Veteran's sincere belief that the onset of his OSA was during his active duty service, or is secondary to his service-connected PTSD. However, the VA examiners of record have all provided negative nexus opinions. Here, the November 2017 and the November 2019 VA examiner's opinions as to direct service connection are given great probative weight because they were able to review the Veteran's claims file and provided strong rationales to support their opinions. The 2017 VA examiner explained that the Veteran was diagnosed with OSA many years after his separation from the military and the 2019 VA examiner explained that although the Veteran's wife credibly reported the in-service sleep symptoms, it was not possible to retroactively diagnose OSA because a sleep study was necessary to determine if there were true apneic episodes. The 2019 examiner also explained that PND was most likely referring to post nasal drip, based on where the PND note was located (Mouth and Throat Section) and that there was otherwise no indication of in-service paroxysmal nocturnal dyspnea. The November 2020 VA examiner's opinion regarding secondary service connection is also afforded great probative weight because the examiner was able to review the medical literature cited to by the Veteran's representative and provided a strong rationale explaining that it is established medical knowledge and practice that OSA is due to upper airway obstruction and that there is no anatomic or physiologic mechanism by which PTSD can cause OSA. On the other hand, while the Board has considered the Veteran and his spouse's lay statements and assertions regarding the onset and etiology of his OSA, they are given very little probative weight because although they are competent to the extent that they provide information regarding what they have experienced through their senses, they are not competent (meaning medically qualified through training or expertise) to provide a medical opinion, such as determining when he was diagnosed with OSA, or the etiology of the his sleep apnea. The Board acknowledges that the Veteran and his wife have provided credible statements regarding the Veteran's symptoms to include, very loud snoring and that he would gasp and struggle for air in the middle of the night. The Board would like to express that it has heard the Veteran's statements and assertions and has seriously considered them. It was in recognition of these reports of symptoms that the Board remanded the claim on one occasion to obtain a medical opinion. The Board also recognizes the Veteran's representative's assertion that recent medical literature has not been considered by the November 2020 VA examiner. See Appellate Brief dated March 16, 2021. The representative cited to two different articles, which suggested a correlation between PTSD and OSA because sleep apnea was associated with a higher prevalence of psychiatric comorbid conditions. The representative also cited to a recent study which showed that PTSD has a known association with sleep apnea. Although these studies cited to by the Veteran's representative have not been specifically reviewed by a VA examiner, the Board finds that a new VA examination is not necessary because the studies cited to in the March 2021 appellate brief are similar to the medical literature reviewed by the November 2020 VA examiner, in that the cited to studies show a correlation between PTSD and OSA. However, even if the two disabilities are correlated with one another, none of the studies appear to suggest that PTSD causes OSA. For example, one of the articles states that the study was conducted to determine whether psychiatric disorders are commonly associated with sleep apnea and the other study reflected that PTSD has a known association with sleep apnea. Here, there is no indication or assertion that in addition to there being an association between the disabilities, that PTSD causes OSA. Further, the November 2020 VA examiner explained that PTSD cannot cause OSA because OSA is due to upper airway obstruction, which PTSD does not cause. The Board acknowledges the Veteran's representative's assertion that the VA examiners of record have failed to take into consideration the Veteran's service-connected diabetes and the plausible relationship to the onset of OSA. However, after a careful review of the Veteran's post-service medical records, to include diabetes VA examination reports, there has been no indication that his diabetes has caused or aggravated his sleep apnea. Here, the first indication that his OSA is due to his service-connected diabetes was in 2021, about 11 years after VA received his service connection claim for OSA and after the issue was remanded multiple times during the course of the appeal for new VA examinations. Other than the Veteran's own lay assertion, there is no competent evidence suggesting that his OSA is related to the service-connected diabetes. As a result, no additional VA examination and/or medical opinion is required with respect to this claim because his lay assertions are not sufficient to meet the McLendon standard. McLendon v. Nicholson, 20 Vet. App. 70 (2006). (Continued on the next page) Moreover, no matter how sincere the Veteran's belief in their claim is, his lay assertions cannot be considered competent medical evidence and he cannot provide an etiology opinion or diagnose a medical condition, such as OSA. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, service connection for OSA, to include as secondary to his service-connected PTSD, is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fu, 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.