Citation Nr: 21031023 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 17-61 967 DATE: May 20, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected schizoaffective disorder, is denied. FINDING OF FACT Sleep apnea was not manifested during the Veteran's active duty service, is not related to his active service, and is not due to or aggravated by a service-connected disability to include schizoaffective disorder. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea, to include as secondary to service-connected schizoaffective disorder, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 2004 to February 2008. The Veteran was afforded a hearing before the undersigned in August 2019. A copy of the transcript is of record. A December 2019 Board decision remanded the issue on appeal for further development. That development has been accomplished, and the claim has now been returned to the Board for further action. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for OSA Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Generally, service connection requires: (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of an injury or disease; and (3) evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). Pursuant to § 3.310(a) of VA regulations, service connection may 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. at 448 (1995). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Veteran asserts that his diagnosed OSA is caused by his active service. Alternatively, he asserts that it is related to weight gain caused by the medication prescribed to manage his service -connected psychiatric disability. Initially, the Board notes that the Veteran's service treatment records are silent concerning sleep apnea symptoms, such as insomnia or drowsiness, or treatment or diagnosis of sleep apnea. The October 2003 enlistment examination did not indicate any sleep apnea symptoms and the Veteran reported that he did not have frequent trouble sleeping. The Veteran also did not report having any frequent trouble sleeping in a June 2007 medical examination. Post-service medical treatment records reflect diagnosis and treatment for sleep apnea. VA treatment records confirm that the Veteran was diagnosed with obstructive sleep apnea in June 2015 and that he was prescribed a CPAP. A medical opinion was provided in February 2016 where the examiner claimed that the Veteran's OSA was less likely than not proximately due to or the result of the Veteran's service-connected bipolar disorder. The examiner explained that a review of evidence-based medical literature did not support a contention of sleep apnea being caused by bipolar disorder. The examiner furthered that when the Veteran was diagnosed with sleep apnea through a sleep study in June 2015, the Veteran was 43 years old, male, overweight, and had craniofacial or upper respiratory abnormalities. The sleep consultation from March 2015 reported that the Veteran had an elongated tongue, an enlarged modified Mallampati, and had a large neck size. The examiner noted that there was no documentation of aggravation beyond the expected natural progression. The examiner explained that the medical literature reported that the most important risk factors for OSA are advancing age, male gender, obesity, and craniofacial or upper airway soft tissue abnormalities. He furthered that additional risk factors identified in some studies included smoking, nasal congestion menopause, and family history. In the Veteran's November 2016 Notice of Disagreement (NOD), the Veteran explained that the medication he takes to treat his psychiatric disorder has caused him to gain weight and this has caused his sleep apnea. He submitted medical articles concerning the medication he takes that show that one of the side effects include weight gain. An August 2016 VA psychiatry medical note indicated that the Veteran's medicine can contribute to weight gain. Another medical opinion was provided in September 2017 where the examiner opined that the Veteran's diagnosed sleep apnea is less likely than not related to and/or aggravated beyond its normal progression by medicine prescribed for the Veteran's service-connected bipolar disorder. The examiner explained that the Veteran had several well established clinically significant risk factors for sleep apnea that did not pertain to his mental health diagnosis or treatment. The examiner explained that according to the March 2015 sleep consultation the Veteran had an elongated soft palate, an enlarged tongue, modified Mallampati at three, and a neck size of 16.5 inches. The examiner concluded that after a review of the records, there was no documentation of aggravation beyond the expected natural progression. In the August 2019 Board hearing, the Veteran reported that the medicine that he takes for his psychiatric disorder has caused him to gain weight, which has caused his sleep apnea since weight gain is top risk factor for sleep apnea. He reported that before he started taking the medicine, he weighed 125 pounds and that he currently weighed 164 pounds. He also claimed that the people who conducted the sleep study said that his weight gain caused his OSA. In September 2019, the Veteran submitted two private medical opinions both from August 2019. The first opinion reported that the Veteran received treatment with medications that often cause weight gain and may contribute to problems related to obesity. The other opinion reported that the Veteran's weight gain likely contributed significantly to his diagnosis of obstructive sleep apnea. Subsequent to the December 2019 Board remand, the Veteran was afforded a VA examination in February 2020. The Veteran reported that he was diagnosed with OSA in 2015 and that the medication he took for his psychiatric disorder caused him to gain weight which in turn caused him to develop sleep apnea. The examiner indicated that the Veteran's STRs were silent for complaints indicative of sleep apnea and that the first time the Veteran's medical records indicated daytime somnolence was in February 2015. The examiner indicated that he reviewed all of the Veteran's medical treatment records and examined the Veteran. The examiner opined that the Veteran did not have sleep apnea that was at least as likely as not incurred in or caused by the fatigue during service. The examiner explained that the Veteran's STRs showed no complaints of, diagnosis, or treatment related to sleep apnea. He furthered that there was no symptoms or signs indicative of OSA while in service or for several years after discharge. The examiner also noted that there were no documented complaints of fatigue during service. The examiner further opined that the Veteran's psychiatric disorder did not case the Veteran to become obese. He furthered that it was not at least as likely as not that the Veteran's OSA had been aggravated by his psychiatric disorder, to include the medications prescribed to treat it. The examiner explained that the Veteran's weight in October 2006 was 140 pounds and at diagnosis of OSA in 2015, he weighed 155 pounds. The examiner explained that the Veteran's BMI was 26 which did not meet the definition of obesity. The examiner furthered that the Veteran started on Olanzapine in 2007 and lithium was added in 2018. He explained that weight gain is a known side effect of both medications, but that it is multifactorial and in a particular individual it is not possible to determine that the weight gain is solely due to the medications. He explained that there are several people who do not gain weight on these medications. Additionally, the Veteran's weight gain was not severe or significant enough to cause OSA. The examiner explained that the Veteran did not gain enough weight for it to be the major cause of his OSA. The examiner explained that while obesity is a risk factor for OSA, it only means that patients who are obese have a higher incidence of OSA and there are many thin individuals who develop OSA. The examiner furthered that risk factors do not mean that they are definitive causative factors. The examiner then explained that the Veteran had upper airway soft tissue abnormalities as evidence by the evaluation documented as Malapati 3 which is a more significant risk factor for OSA. The examiner also indicated that the Veteran has a history of smoking which is also a risk factor for OSA. The examiner reported that the Veteran's OSA is well controlled with CPAP and that a detailed review of his treatment records showed no evidence to indicated that his OSA was aggravated beyond natural progression by his service-connected mental disorder. The examiner ultimately opined that after a detailed review of the treatment records and the relevant scientific literature it was less likely as not that the Veteran's OSA was caused by or aggravated by the weight gain due to medications used for his mental disorder. In an addendum opinion from July 2020, the same examiner from the February 2020 VA examination opined that the first August 2019 opinion was a general statement regarding the etiology of OSA and that it did not take into account the pattern of the Veterans weight gain and the temporal relationship of his weight and the diagnosis of OSA and other risk factors the Veteran has for OSA. The examiner continued to opine regarding the second August 2019 opinion claiming that it was also a general statement that medications can cause weight gain but did not take into consideration the temporal relationship of the Veteran's weight and the starting of his medications. After weight all the evidence, the Board is unable to attribute the Veteran's post-service development of sleep apnea to his active service or his service-connected psychiatric disorder. The Board notes that although the medical evidence reflects a current diagnosis of OSA, there is no objective medical evidence which provides a nexus between the Veteran's diagnosed sleep disorder to either active duty or any service-connected disability. No diagnosis, symptoms, or etiology of a sleep disorder is noted in his service treatment records, and post-service medical records reflect only diagnosis of obstructive sleep disorder as early as 2015, or almost seven years after service discharge. While not a dispositive factor, the passage of time between the Veteran's discharge and an initial diagnosis for the claimed disorder is one factor that weighs against the Veteran's claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Thus, there is no evidence of record to indicate that symptoms of obstructive sleep apnea had their onset during active service or within one year of his separation other than the Veteran's own lay assertions. The Veteran is competent to report his symptoms, such as difficulty sleeping, but to the extent that such assertions purport to establish the etiology of any such disability, such assertions do not provide persuasive support for the claim as the Veteran is not shown to possess the medical training to render competent opinions about such complex medical matters. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Thus, the Board affords the lay opinions no probative value. Additionally, the Board has considered the Veteran's alternative theory of secondary service connection, specifically, that his sleep apnea was caused or aggravated by his service-connected psychiatric disorder. However, there is no probative medical opinion of record indicating that the Veteran's OSA is proximately caused or aggravated by his service-connected psychiatric disorder. While the Veteran submitted statements by two different providers in August 2019, the Board finds that these opinions to have very little probative weight and there is no indication that the examiners had reviewed the Veteran's entire claims folder. Additionally, as pointed out by the July 2020 VA examiner, there was no indication that the examiners took into account the pattern of the Veteran's weight gain and the temporal relationship of his weight and the diagnosis of OSA and the other risk factors the Veteran had. As such, the Board finds the opinions of the February 2020 and July 2020 VA examiners highly credible, probative, and persuasive against a finding of service connection on any theory because the opinions are based on the Veteran's pertinent medical history and both give a thorough, well-explained rationale for all opinions; the report provides an adequate basis for the diagnosis and opinions rendered. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). (Continued on the next page) Therefore, the Board finds that the preponderance of the evidence is against a grant of service connection for obstructive sleep apnea on both a direct and secondary basis. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable, and service connection for obstructive sleep apnea must be denied. 38 U.S.C. § 5107(b). Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Imam, 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.