Citation Nr: 21040441 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 17-30 615 DATE: July 3, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his obstructive sleep apnea began during active service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for obstructive sleep apnea are met. 38 U.S.C. §§ 1101, 1110, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1986 to September 1986 and from November 2004 to January 2006. This matter comes to the Board of Veterans' Appeals (Board) from a December 2014 rating decision which, in pertinent part, denied entitlement to service connection for obstructive sleep apnea. In September 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board Central Office hearing in Washington, D.C. A copy of the transcript is of record. In November 2019 and February 2021, the Board remanded the matter for further development, to include obtaining a VA examination and medical opinions. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The U.S. Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of a "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With a chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Entitlement to service connection for obstructive sleep apnea. The Veteran contends that service connection is warranted for obstructive sleep apnea (OSA). Specifically, he contends that his OSA began during service after a cervical spine surgery or alternatively, that his OSA is secondary to his service-connected cervical spine or psychiatric disabilities, to include weight gain from his psychiatric disability. The question for the Board is whether the Veteran's OSA began during service or is otherwise related to service, or whether his OSA is proximately due to or is aggravated by a service-connected disability. The Board concludes that the Veteran has a current disability that began during active service, to include as proximately due to weight gain from a service-connected psychiatric disability that was diagnosed during service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Turning to the evidence of record, service treatment records reflect that when the Veteran began his second period of active duty in November 2004, his weight was recorded at 170 pounds. In February 2005, the Veteran underwent a cervical fusion after sustaining an injury; his weight was recorded at 168 pounds. A May 2005 Report of Medical Examination notes the Veteran's weight at 162.5 pounds. In August 2005, he was diagnosed with adjustment disorder with mixed anxiety and depressed mood, with guilt over not being able to ship out with his platoon due to his injury. The Veteran's service treatment records are otherwise silent for complaints related to sleep problems. VA treatment records dated in March 2006 reflect the Veteran underwent nutritional counseling for elevated cholesterol. His weight was recorded at 158 pounds, and it was noted that his ideal weight was 160. Treatment records dated in September 2006 noted his weight was up 18 pounds from February 2005, or at approximately 186 pounds. In December 2006, his weight was noted to be up another 10 pounds from September 2006, or at approximately 196 pounds. VA treatment mental health records dated in September 2006 reflect the Veteran complained of sleep disturbances with frequent awakening. A February 2007 VA examination report noted his weight at 183 pounds. A March 2007 VA examination report reflects the Veteran reported he was unable to sleep through the night and would wake up at the slightest noise. The examiner diagnosed adjustment disorder with anxious mood, noting that persistent symptoms of arousal were evident due to the Veteran's difficulty falling asleep and staying asleep. VA treatment records reflect the Veteran's weight gradually increased and fluctuated; his weight was recorded at 185 pounds (November 2007), 187.9 pounds (September 2008), 194 pounds (April 2009), 177.2 pounds (May 2010), 179.6 pounds (July 2010), 192 pounds (September 2011), 185.1 pounds (November 2011), 185.3 pounds (July 2012), 193.9 pounds (April 2013), and 183.5 pounds (December 2013). In January 2014, the Veteran reported heavy snoring, witnessed apnea, and excessive daytime sleepiness. He was referred for a sleep study. A January 2014 VA sleep study reflects a weight of 177 pounds and a diagnosis of mild sleep apnea. In March 2014, the Veteran claimed service connection for sleep apnea secondary to his service-connected cervical spine condition. A December 2014 VA examination report reflects the Veteran reported a history of loud snoring and witnessed apnea. After examining the Veteran and reviewing the claims file, the examiner provided a diagnosis of OSA. The examiner explained that there was no cause and effect relationship between musculoskeletal conditions and OSA. The examiner noted, however, the Veteran's weight gain over the years and opined that his sleep apnea was more likely than not related to his weight gain. As such, the examiner opined that the Veteran's OSA was less likely than not proximately due to or the result of his service-connected cervical spine disability. The Veteran's claim was denied in a December 2014 rating decision. In a November 2015 notice of disagreement, the Veteran reported that since his cervical spine surgery, he had been told that he snored and quit breathing during his sleep. In a December 2015 VA Form 21-4138 (Statement in Support of Claim), the Veteran alternatively asserted that his OSA may be related to dreams from his psychiatric disability. In his June 2017 VA Form 9 (Appeal to the Board of Veterans Appeals), the Veteran reported that his adjustment disorder with anxious mood caused him to be anxious, suspicious of everyone, and he would wake up startled and jump out of bed. He asserted that he stopped breathing because of the nightmares. The Veteran argued that he did not snore until after his cervical spine surgery. VA treatment records dated in December 2017 reflect the Veteran reported ripping off his c-pap mask when waking up from nightmares. During his September 2019 Board hearing, the Veteran asserted that his weight at diagnosis was within military standards and that his sleep apnea was due to his cervical spine disability. He reported that no one told him he snored until after his cervical spine surgery. The Veteran was afforded a VA examination in December 2019. The Veteran reported that around 2006, his partner started to notice sleep problems, such as startling awake. His spouse at the time of the examination, who he married in 2010, also reported he snored and startled in his sleep. He reported nightmares and daytime somnolence. The examiner noted that at the time of his cervical spine surgery in February 2005, his body mass index (BMI) was 23.3, which is normal. At the time of his separation from service in January 2006, his BMI was 27.6, which is overweight. His BMI at the time of his sleep study was 26, which is overweight. The examiner explained that more than half of people with OSA are either overweight or obese with a BMI of 25 to 29.9 or 30 or above, respectively. In adults, excess weight is the strongest risk factor associated with OSA. The examiner indicated that the Veteran also had a neck circumference of 18 inches, and was an aging male, and that his risk factors were the likely cause of his OSA. Thus, the examiner opined that the Veteran's OSA was less likely than not related to his service-connected cervical spine or psychiatric disabilities. The examiner also opined that it was less likely than not that the Veteran's OSA was aggravated beyond its natural progression by service-connected disability. The examiner explained that OSA is a physical disorder that causes reversible obstruction in breathing during sleep due to abnormal nasopharynx structure or large amount of adipose tissue resulting in poor sleep patterns. PTSD, the examiner noted, is a psychological disorder that causes interrupted sleep due to nightmares. In a February 2021 appellate brief, the Veteran's representative argued that the December 2019 examiner failed to consider whether the Veteran's weight gain was due to his psychiatric disability, to include whether sleep impairment from his psychiatric disability altered his appetite and hormones leading to weight gain. In a March 2021 addendum opinion, the examiner noted the Veteran's service treatment records were silent for complaints, diagnosis, or treatment related to sleep issues. The examiner further noted that while the Veteran reported he was told that he snored by his former sleep partners and that they witnessed apneas, there were no corroborating statements from those individuals. During service, the Veteran's known risk factor for OSA included male gender, but he was not overweight or obese during service. Thus, the examiner opined that it was less likely than not that his OSA was incurred in or caused by service. The examiner also opined that it was less likely than not that the Veteran's OSA was proximately due to or a result of, or aggravated by, a service-connected condition. The examiner explained that OSA is characterized by obstructive apneas, hypopneas, and/or respiratory effort-related arousals caused by repetitive collapse of the upper airway during sleep. Established risk factors include male gender, overweight/obesity, age over 40, and craniofacial and upper airway findings/abnormalities such as large neck size, large tonsils, and small jawbone, among others. A review of the literature did not find any definitive studies showing the Veteran's cervical spine disability was a cause of or risk factor for OSA or could aggravate OSA. Additionally, while literature revealed that veterans with PTSD screened higher for OSA compared to others in the community, the exact mechanism associating PTSD and OSA/sleep-disordered breathing is not fully understood. While sleep apnea and PTSD have an increased level of comorbidity and can have overlapping symptoms, including sleep disturbances such as insomnia, there was no evidence to support that overlapping symptoms would cause or worsen the underlying pathophysiologic cause for OSA. As to mental health and obesity, while there is a known association, the examiner explained that association does not denote causation. The Veteran's weight was 158 with a BMI of 23.3 in February 2005. At the time of his sleep study, his weight was 177 with a BMI of 26.1, classified on the lower threshold of overweight. Many factors contribute to development over obesity, but most cases are related to behaviors such as sedentary lifestyle and increased caloric intake. The Veteran's weight gain of 19 pounds from 2005 to 2014 was likely multifactorial due to dietary intake based on nutrition notes, his activity level, increasing age, and psychological factors. Upon review of the record, the Board finds the evidence to at least approximately balanced as to whether the Veteran's OSA began during service. The Veteran contends that he was told he began snoring and startling awake after his cervical spine surgery in February 2005. The Board does not find persuasive the March 2021 VA examiner's dismissal of the Veteran's lay statements because there were no corroborating statements of record by his previous significant others, who he is no longer with. The Board has no reason to doubt the credibility of the Veteran's statements and he is competent to report what others told him. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Furthermore, he complained in September 2006, shortly after separation from service, of sleep disturbances with frequent awakening. The Board further notes that of the three VA examinations afforded to the Veteran, no examiner has indicated that the Veteran's snoring and witnessed apneas were not the onset of the his OSA. The Board finds the Veteran's weight gain after his cervical spine surgery and onset of his psychiatric disorder during service is also pertinent to its determination in this case. The Veteran's weight at the time of his cervical spine surgery in February 2005 was 168 pounds, resulting in a normal BMI according to the December 2019 VA examiner. While waiting for his medical discharge, the Veteran was diagnosed with adjustment disorder with mixed anxiety and depressed mood, with guilt over not being able to ship out with his platoon due to his injury. The December 2019 VA examiner also indicated that the Veteran's BMI was overweight at the time of his January 2006 separation from service. By September 2006, his weight was up 18 pounds from February 2005, or at approximately 186 pounds. The Board finds it significant that while the March 2021 VA examiner opined that the Veteran's OSA was not proximately due to or aggravated by his service-connected psychiatric disability, the examiner also acknowledged that psychological factors contributed to his weight gain. While there are deficiencies in the examinations obtained by VA, at this point, the Board declines to remand for an additional opinion as such would resemble a fishing expedition for negative evidence, which, in view of the available lay and medical evidence, is not necessary. Indeed, obtaining such additional evidentiary development in this instance would only result in additional delay with no benefit to the Veteran. Sabonis v. Brown, 6 Vet. App. 426 (1994). As the only probative and competent evidence of record supports a grant, and the Board does not wish to remand for negative development, the Board finds that the requirements for entitlement to service connection for OSA have been met. Thus, resolving all doubt in favor of the Veteran, the Board finds that the Veteran's OSA has its onset during active service, to include as proximately due to weight gain from his service-connected psychiatric disability, which had its onset during service. This is considered a full grant of the benefit sought on appeal and the Board need not discuss whether his OSA is aggravated by his service-connected psychiatric disability. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for obstructive sleep apnea is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Owen, 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.