Citation Nr: 21039964 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 16-53 658 DATE: July 1, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA), including as secondary to service-connected lumbosacral sprain with intervertebral disc syndrome (IVDS), service-connected radiculopathy, service-connected gastroesophageal reflux disease (GERD), and service-connected posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The Veteran's OSA is not secondary to service-connected lumbosacral sprain with IVDS, service-connected radiculopathy, service-connected GERD, and service-connected PTSD, and is not otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for OSA are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from September 1998 to February 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision from a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran testified before the undersigned Veterans Law Judge at a Board videoconference hearing in October 2019. The Board most recently remanded this appeal in April 2021. The directives of the Board's remand having been substantially complied with the case is returned for appellate review. 1. Entitlement to service connection for obstructive sleep apnea (OSA), including as secondary to service-connected lumbosacral sprain with intervertebral disc syndrome (IVDS), service-connected radiculopathy, service-connected gastroesophageal reflux disease (GERD), and service-connected posttraumatic stress disorder (PTSD) The Veteran seeks service connection for OSA based on multiple theories of entitlement. He testified at the Board hearing in October 2019 that his OSA had its onset in service, and that as it went untreated, he continued to gain weight after service. In his testimony, the Veteran attributed the following in-service symptoms to OSA: daytime sleepiness, grogginess, snoring, difficulty waking, attention problems, irritability, dozing, and morning headaches. He cited a Wisconsin Sleep Cohort study for the proposition that a 10 percent gain of body weight increases the odds of developing OSA six-fold, and the Veteran argued that his weight increased approximately 25 percent during active duty service. The Veteran also cited the National Sleep Foundation for the proposition that untreated OSA causes weight gain. In July 2016, the Veteran's ex-wife, who was married to the Veteran before and during his active duty service, wrote a statement in which she indicated that the Veteran's snoring had its onset during his service. She additionally noted that it was hard to wake him up when he was asleep. The Veteran also contends that his OSA is secondary to his service-connected lumbosacral sprain with IVDS, radiculopathy, and GERD. He testified at the Board hearing that his musculoskeletal disabilities prevented him from exercising, which caused him to gain weight, which, in turn, caused his OSA. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 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 also 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 had its onset in service, or is proximately due to or the result of, or was aggravated beyond its natural progress by service-connected disability. The Veteran has a current diagnosis of OSA. See, e.g., November 2015 sleep study performed at Medical Center of Peach County. Thus, the first element of for service connection is met. In addressing the second and third elements of service connection, the Board concludes that, while the Veteran has a current disability, the preponderance of the evidence is against finding that the Veteran's OSA had its onset in service. The preponderance of the evidence also is against finding that OSA is proximately due to or the result of or aggravated beyond its natural progression by a service-connected disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). As noted, the Veteran asserts that his sleep apnea had its onset in service involving symptoms such as daytime sleepiness, grogginess, snoring, difficulty waking, attention problems, irritability, dozing, and morning headaches. He also noted that because his sleep apnea was untreated, he gained weight, citing the National Sleep Foundation for the proposition that untreated OSA causes weight gain. His ex-wife also recalled that the Veteran snored during service and it was hard to wake him. The service treatment records note that the Veteran had an appointment for a sleep disorder in July 2000. He was assessed as having depression and insomnia. Several of the Veteran's personnel records also note that he was counseled for being tardy and complained of trouble sleeping. See, e.g., July 2000 personnel record. A September 2000 treatment record notes that he had frequent trouble sleeping. His weight was 155 pounds (which was an increase of 31 pounds since June 1998). A May 2016 VA examination report notes the Veteran's statements that during his military time he had a lot of problems with sleep; he overslept and missed formation and physical training multiple times. He noted that he was disciplined for oversleeping and missing formation. He recalled that his ex-wife said that he snored. The examiner noted the Veteran's assertions and his service treatment records and determined that the Veteran's OSA was not at least as likely as not incurred in or caused by the sleep troubles during service. The rationale was that the Veteran complained of sleep trouble and noted multiple problems that were related to that but none of his complaints included findings attributable to OSA. The examiner stated that OSA included a constellation of symptoms of which weight gain was one. During the Veteran's military time he gained 31 pounds. By 2011 he had gained an additional 37 pounds. The examiner found no nexus for OSA during his military time. The Board remanded the case in December 2019 for a VA examiner to address the counseling/ tardiness, trouble sleeping, lay statements regarding difficulty waking and grogginess, and contention that a 10 percent weight gain in service increased OSA six-fold. A December 2019 VA examination report found that the Veteran's OSA was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that OSA was, by definition, due to an obstructive phenomenon involving the upper airways. The examiner noted that the Veteran's reports of snoring are credible, but snoring was a nonspecific symptom and due to several possibilities. The examiner found that nothing suggested apneic episodes in the service treatment records or the Veteran's complaints. The examiner noted that sleep disturbance was reported at separation from service, but the Veteran related this to depression and excessive worry. The examiner further noted that sleep apnea was not diagnosed until 2015, at which time it was deemed very mild, suggesting relatively recent onset. Therefore, the examiner found that it was less likely than not that the Veteran's OSA arose in service, had its nexus in service, or was due to events in service. The Board remanded the case again in April 2020 so that the examiner could address the Veteran's specific contentions, including service personnel records indicating tardiness and failure to report due to oversleeping; his ex-wife stating that it was difficult for him to wake up during service and that he had daytime sleepiness, grogginess, dozing, morning headaches, irritability, and difficulty concentrating; and the contention that his 25 percent gain of body weight in service increased the odds of developing OSA. A June 2020 VA examination report notes that the Veteran's OSA was not incurred in or caused by service. The rationale was that the Veteran was not diagnosed with OSA until 2015. During service he had a weight gain and sleeping issues that he related to depression. He experienced daytime sleepiness and other symptoms that went along in conjunction with OSA, but diagnostic evidence of this condition did not happen until a sleep study was performed in 2015 and it was noted to be very mild at that time. The examiner also noted a review of the conflicting medical evidence. It was noted that OSA is a common disorder characterized by repetitive episodes of nocturnal breathing cessation due to upper airway collapse, citing to https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4549693. The examiner further indicated that sleep apnea could be caused by a person's physical structure or medical conditions, including obesity, large tonsils, endocrine disorders, neuromuscular disorders, heart or kidney failure, certain genetic syndromes, and premature birth. The examiner noted that there many risk factors for sleep apnea, some of which included unhealthy lifestyle habits and environments, age, family history and genetics, race and ethnicity, and sex. It was noted that a 10 percent weight gain increased the odds of one developing sleep apnea and the Veteran gained 31 pounds in service; but the examiner found that this was more than likely related to muscle mass as physical training was a big factor to continue in the military. The examiner indicated that the Veteran was noted diagnosed with sleep apnea until 2015 and at that time it was mild. After service, the Veteran gained another 37 pounds and it was more likely than not that this was when he actually developed sleep apnea and not when he was in service. The examiner determined that there was no diagnostic evidence to prove sleep apnea while in service. It was noted that OSA was multifactorial and not based off of obesity alone; there were structural changes in the airway that prevented adequate breathing when in certain positions and this was not evident until 2015. The June 2020 VA 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). As for the Wisconsin Sleep Cohort study, and the National Sleep Foundation study finding a correlation between weight gain and sleep apnea, referenced by the Veteran, these studies are very general in nature and do not contain any information or analysis specific to the Veteran's case or the circumstances of his disability. Furthermore, the June 2020 examiner considered the studies and found that the Veteran's weight gain in service was more likely as a result of muscle mass gain from physical training. The Board finds that the submitted studies have little probative value to the question currently before it. In a July 2020 statement, the Veteran challenged the competency of the VA examiners, specifically the May 2016, December 2019, and June 2020 VA examiners. Specifically, he argued that his examinations were conducted by a nurse practitioner (June 2020 VA examination) and an OBGYN doctor (December 2019 VA examination), which made them unqualified to provide an opinion as to his OSA. On remand, the AOJ provided the credentials for the nurse practitioner who conducted the examination in June 2020 but was unable to provide the credentials for C.B., PhD, or the examiner who performed the examination in December 2019. A physician's assistant (PA), D.F., provided the May 2016 VA examination; it is not clear if the Veteran specifically challenged this PA's qualifications, as he seemed to focus on the nurse practitioner and OBGYN doctor. However, based on the analysis above, the Board is primarily relying on the June 2020 VA examination and opinion. The question of whether an examiner is competent and whether they have rendered an adequate examination are two separate inquiries. See Francway v. Wilkie, 930 F.3d 1377, 1381 (Fed. Cir. 2019). Absent some challenge to the expertise of a VA expert, there is no requirement that VA present affirmative evidence of a medical professional's qualifications in every case as a precondition for the Board's reliance upon that person's opinion. As such, the Board is entitled to assume the competence of a VA examiner unless the competence is challenged. Sickels v. Shinseki, 643 F.3d 1362, 1365-66 (Fed. Cir. 2011); Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009). This presumption is rebutted when the Veteran raises the issue of competency. See Francway, 930 F.3d at 1380. After the Veteran challenges the competency of a medical examiner, the Board must then make factual findings regarding the qualifications and provide reasons and bases for concluding whether or not the medical examiner was competent to provide the opinion. Id. at 1381. In reviewing the qualifications of the nurse practitioner who provided the June 2020 opinion, there is no reason shown to doubt her competence. She has a Master of Science in Nursing and her license is not expired. She also is Board certified from the American Academy of Nurse Practitioners. While the AOJ was unable to provide the credentials of the examiner who provided the December 2019 examination, the examination report notes that he is a General Practice physician and also practices in Obstetrics and Gynecology. Even though the Veteran asserts that a physician who practices in Obstetrics and Gynecology could not be qualified to provide an opinion as to OSA, he is also noted as being a General Practice physician, which would encompass general medicine, including OSA. There is no reason shown to doubt the competency of this examiner, or the nurse practitioner. While the Veteran believes his OSA first manifested in service, including as due to his 31-pound weight gain in service, and his symptoms of daytime sleepiness, grogginess, dozing, morning headaches, irritability, and difficulty concentrating, resulting in tardiness and failure to report due to oversleeping, he has not been shown to have the necessary medical knowledge to be deemed competent to provide a nexus opinion in this case. This issue is medically complex, as it requires interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). In addition, the credibility of the Veteran's statements as to onset of his OSA symptoms is undermined by the inconsistencies of record. For instance, while he has reported various symptoms that he attributes to OSA in service, a December 2, 2015 treatment record from Sleep Med notes that the Veteran reported that his symptoms began within the last one to five years (which would have been 2010, i.e., 9 years after the Veteran's separation from service). He also noted, however, that he believed he had some degree of abnormal sleepiness as far back as high school, but it had been particularly bad during the past few years. As the Veteran is not competent to make a medical assessment as to the etiology of his sleep apnea and also has provided conflicting statements as to the onset of symptoms, the Board gives more probative weight to the June 2020 VA examination report and resulting opinion. As for the Veteran's second theory of entitlement to service connection based on OSA being secondary to his service-connected lumbosacral sprain with IVDS, radiculopathy, and GERD, the preponderance of the evidence also is against this claim, as noted. Specifically, he asserts that his musculoskeletal disabilities prevented him from exercising, which caused him to gain weight, which, in turn, caused his OSA. A December 2019 VA examiner found that the Veteran's OSA was less likely than not proximately due to or the result of his service-connected back disability. The rationale was that the two conditions are not medically related. The claimed disorder is a separate entity from the service-connected condition and unrelated to it. The examiner also noted that the medical literature did not support a medical relationship. A nexus had not been established. The examiner stated that OSA is an obstructive phenomenon in the upper airways, and conditions of the back are less likely than not the cause of the Veteran's OSA. A supplemental opinion noted that the Veteran was linking his OSA to weight gain caused by his back conditions. The examiner found that weight gain was associated with OSA, but the pathophysiology still required upper airways obstruction. The examiner noted that the Veteran's OSA was very mild, some 15 years after service at the time of diagnosis. The examiner thus found that it was unlikely that the weight gain during service was enough, in and of itself, to cause OSA. Therefore, it was less likely that there was any connection between the Veteran's back conditions and OSA. As for aggravation, the examiner noted that the baseline was established at the time of the sleep study in 2015. It was noted that to assess progression, a new sleep study and CPAP evaluation would be required but this was outside of the scope of the examination. Another supplemental opinion was provided that the Veteran's weight gain in service was multifactorial, and while the Veteran's back disability would have limited some form of activity, it would not preclude all forms and diet restriction. Therefore, the examiner found that it was less likely than not that the Veteran's back disabilities were the sole cause of the Veteran's obesity. Again, the examiner noted that the diagnosis was not made until 2015, 15 years after service. It was found that had the obesity been the cause, it would have manifested sooner. As for the Veteran's GERD, the VA examiner found that the two conditions were medically unrelated; the medical literature did not support a medical relationship, and a nexus had not been established. The examiner noted that GERD does not cause OSA. The examiner found that OSA was due to obstruction of the upper airways; and GERD was due to relaxation of the gastroesophageal junction/ sphincter. The examiner noted that they were anatomically and physiologically unrelated; there was no relationship between cause and effect. Thus, it was determined that the Veteran's OSA was less likely than not due to the Veteran's GERD. After the Board remanded the case in April 2020 for another medical opinion to address the Veteran's contentions and the issue of aggravation from service-connected disabilities, another medical opinion was provided. A VA examination report in June 2020 notes that the Veteran's service-connected lumbosacral strain with IVDS or bilateral radiculopathy was not medically related to OSA. The examiner found that OSA is a separate entity entirely from the lumbosacral strain with IVDS or bilateral radiculopathy. A thorough review of the medical literature failed to demonstrate a causal relationship. As for aggravation, the examiner noted that the baseline was the sleep study performed in November 2015, which noted very mild OSA. The examiner further found that the current severity of the OSA was not greater than the baseline. The Board remanded the case again in July 2020 as the examiner did not provide an opinion as to whether the OSA was secondary to GERD and did not address obesity as an intermediate step. A September 2020 VA medical opinion found that the Veteran's OSA was not caused or aggravated beyond its natural progression by his service-connected GERD. It was noted that a causative relationship between OSA and GERD remained an area of controversy. The examiner noted that while studies suggested that GERD and OSA were common entities that shared similar risk factors, they did not appear to be causally linked. In November 2020, the Board remanded the case in a further attempt to get a medical opinion addressing all contentions. It was noted that the opinion provided in September 2020 essentially repeated the other opinions and rationales of record. Again, the opinion also did not provide any rationale for whether the Veteran's OSA was aggravated beyond its normal progress by his service-connected GERD. The examiner also did not address whether the Veteran's obesity was an intermediate step between his service-connected back disability and OSA. Finally, it was noted that the Veteran had been granted service connection for PTSD and now asserted that his OSA was secondary to his PTSD. A VA medical opinion provided in December 2020 found that the Veteran's back disability and bilateral sciatic radiculopathy were mild, which did not support his claim that the back limited activity so as to cause the Veteran's obesity. The examiner also found that though PTSD and related psychological comorbidities may have eating disturbances, there was no evidence to suggest that PTSD contributed substantially to the Veteran's obesity. The examiner noted that PTSD-related records did not reflect that complaint. The examiner indicated that obesity was multifactorial, including genetics, dietary intake, exercise, attitudes toward food, types of food, and attitudes toward exercise. The examiner noted that there were multiple programs and low impact exercises available which took into account a given limitation. Physical and occupational therapy and water exercise were available. The examiner found that it was more likely than not that the Veteran gained weight in the usual fashion, due to inactivity and too many calories, with very little impact from his back. The examiner determined that the Veteran's symptoms far outweighed his clinical findings and did not support his contention. Therefore, the examiner found that it was less likely than not that the Veteran's obesity was due to his back conditions. The examiner also found that it was less likely than not that the Veteran's OSA was due to his PTSD. The examiner found that although weight gain was a risk factor for developing OSA, it was more likely than not that the Veteran would have developed OSA anyway. It was noted that other factors associated with the development of OSA were genetic, upper airway conditions, neck circumference, neck length, and sleep hygiene/ position. The examiner indicated that it was accepted medical knowledge and practice that risk factors did not constitute cause. The examiner noted that the Veteran's OSA was not diagnosed until 2014, 13 years post service. The examiner also indicated that technically, the Apnea-Hypopnea Index (AHI) of 4.5 did not meet VA guidelines for a diagnosis of OSA, which was 5. The examiner found that if this was conceded as mild OSA, this suggested a recent onset; and any contribution from the Veteran's service-connected conditions likely would have manifest before then. As for the Veteran's GERD, the examiner found that GERD did not cause or aggravate OSA. It was noted that they often occurred concomitantly but that this association did not imply cause and effect. The examiner indicated that GERD was due to relaxion of the gastroesophageal sphincter/ junction, allowing stomach contents and acid reflux into the esophagus. As such, it had no impact on the mechanism of OSA. This was a pathophysiologic fact. Sleep disturbances caused by GERD might contribute to difficulty adjusting to a CPAP device and contribute to daytime somnolence. This did not represent aggravation of the baseline condition of OSA and did not impact OSA itself. With respect to aggravation, the examiner indicated that the prior opinion in September 2020 was unchanged. There was no evidence of aggravation of the Veteran's OSA beyond its natural course due to any cause, including PTSD, GERD, and back conditions, or other service-connected conditions. The examiner noted that the natural course of OSA was to worsen over time. Nothing suggested a course other than the natural course. In summary, the examiner found that it was less likely than not that the OSA was due to service. It was less likely than not that it was due to the Veteran's obesity and more likely than not that it would have occurred anyway. The examiner found that it was less likely than not that the Veteran's PTSD and back conditions caused the Veteran's obesity. The examiner also found that it was less likely than not that the GERD caused or aggravated the OSA; and it was less likely than not that the Veteran's OSA was due to or aggravated by PTSD or back conditions. As noted, after several remands, the December 2020 opinion addressed the remaining questions of record: namely, whether the Veteran's OSA was aggravated beyond its normal progress by his service-connected GERD with a rationale; whether the Veteran's obesity was an intermediate step between his service-connected back disability and OSA, with a rationale; and whether the Veteran's OSA was secondary to his PTSD, with a rationale. The examiner noted that the Veteran's OSA was not aggravated by his GERD because while sleep disturbances caused by GERD might contribute to difficulty adjusting to a CPAP device and contribute to daytime somnolence, this did not represent aggravation of the baseline condition of OSA and did not impact OSA itself. The examiner further noted that it was the natural course of OSA to worsen over time and there was no evidence of aggravation of the Veteran's OSA beyond its natural course due to the GERD. The examiner also found that the Veteran's obesity was not an intermediate step between his service-connected back disability and OSA because obesity was multifactorial, including genetics, dietary intake, exercise, attitudes toward food, types of food, and attitudes toward exercise. The examiner noted that there were multiple programs and low impact exercises available which took into account a given limitation. Physical and occupational therapy and water exercise were available. The examiner found that it was more likely than not that the Veteran gained weight in the usual fashion, due to inactivity and too many calories, with very little impact from his back. The examiner also found that although weight gain was a risk factor for developing OSA, it was more likely than not that the Veteran would have developed OSA anyway. Finally, the examiner found that the Veteran's OSA was not secondary to his PTSD because although PTSD and related psychological comorbidities may have eating disturbances, there was no evidence to suggest that PTSD contributed substantially to the Veteran's obesity. The examiner noted that PTSD-related records did not reflect that complaint. As the examiner in December 2020 offered clear opinions with reasoned analysis based on the Veteran's accurate medical history, the probative value of this opinion is high. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As noted, the Veteran challenged the competency of the VA examiner in December 2019, who also provided the December 2020 opinion, specifically arguing that these opinions were provided by an OBGYN doctor, which made the doctor unqualified to provide an opinion as to his OSA. While the AOJ was unable to obtain the examiner's complete qualifications, he was noted to be a General Practice doctor and also specialized in Obstetrics and Gynecology. These qualifications do not indicate that the physician is not competent to render the opinions provided regarding the Veteran's OSA. Thus, the Board finds that the December 2020 VA examiner is competent to render the opinion. The Veteran believes his OSA is proximately due to or the result of or aggravated beyond its natural progression by a service-connected disability. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the December 2020 VA medical opinion, as well as the other probative June 2020 VA medical opinion of record addressing the theory of entitlement to service connection for OSA based on in-service incurrence. As the preponderance of the evidence is against the claim, the doctrine of reasonable doubt is not for application. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). The appeal for service connection for OSA is denied. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sarah B. Richmond, 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.