Citation Nr: 21040812 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 13-14 130 DATE: July 7, 2021 ORDER Service connection for sleep apnea, to include as secondary to posttraumatic stress disorder (PTSD), is denied. REMANDED Entitlement to an initial evaluation in excess of 10 percent for bilateral hearing loss. FINDING OF FACT Sleep apnea was not caused or aggravated by PTSD or by an in-service event, disease, or injury. CONCLUSION OF LAW The criteria for service connection for sleep apnea, to include as secondary to PTSD, are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1975 to February 1978. This appeal is before the Board of Veterans' Appeals (Board) from October 2012 and January 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In February 2018, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge via videoconference. A transcript is included in the claims file. In an August 2018 decision, the Board denied the Veteran's claim for an increased rating for his hearing loss and reopened his claim of service connection for sleep apnea and denied it. The Veteran appealed these denials to the United States Court of Appeals for Veterans Claims (Court), which vacated these denials in a June 2019 order granting a joint motion for partial remand (JMPR). In November 2019, the Board denied the issues on appeal. He again appealed to the Court, which again vacated the denial in a March 2021 order granting another JMPR. The issues are therefore again before the Board. Entitlement to service connection for sleep apnea, to include as secondary to PTSD The Veteran claims service connection for sleep apnea. The JMPRs instructed the Board to address whether remand for a VA examination was required to determine whether sleep apnea was aggravated by PTSD. No other defect in the law, facts, or analysis was identified, and no additional evidence or argument has been added to the record since the vacated August 2018 Board decision. As such, the Board herein reproduces the reasons and bases from the August 2018 decision followed by additional analysis addressing the concerns of the JMPR. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant 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; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Service treatment records do not reflect any symptoms of or treatment for sleep apnea. No abnormality was noted at his December 1977 separation examination, and in the accompanying report of medical history the Veteran explicitly denied having ever experienced frequent trouble sleeping. VA treatment records reflect that in May 2006 the Veteran reported snoring and possible apneic episodes. His physician gave a provisional diagnosis of sleep apnea. In September 2006 he underwent a sleep study which showed obstructive sleep apnea. In March 2007 he reported difficulty using his continuous positive airway pressure (CPAP) machine. Private treatment records reflect that in October 2007 the Veteran requested an evaluation of his sleep apnea and nasal airway obstruction. In November 2007 his physician diagnosed sleep apnea in a patient who was not obese but did have upper airway considerations for obstructions with a septal deviation, turbinate hypertrophy, and uvulopalatal collapse. In June 2008 he underwent a uvulopalatopharyngoplasty with tonsillectomy, septoplasty, and bilateral partial submucous resection of inferior turbinates. He continued treatment for sleep apnea thereafter. An additional sleep study in June 2009 showed sleep apnea. In an April 2012 statement, the Veteran's eldest son reported memories of witnessing his father sleeping with periods of snoring and apneas. He stated that this occurred since his adolescence. A birth certificate in the claims file indicates that he was born in 1978. The Veteran submitted a June 2013 disability benefits questionnaire for PTSD completed by his treating VA psychiatrist. Among the symptoms that apply to this diagnosis, the psychiatrist listed chronic sleep impairment and specified sleep apnea. In an accompanying July 2013 statement, the Veteran stated that this indicates that sleep apnea is secondary to PTSD. The Board notes that VA treatment records include an early June 2013 progress note in which the same treating psychiatrist stated that the Veteran "admits having sleep apnea and admits that this has caused him his depressive symptoms." At his February 2018 hearing, the Veteran reported that his sleep apnea was due to his PTSD. He reported that PTSD prevented him from sleeping and that he was diagnosed with sleep apnea right after service. He reported that he snored in service. He stated that shortly after he separated from service, his wife told him that there were occasions where he stopped breathing while sleeping. The Board finds that the evidence weighs against a finding that sleep apnea is related to PTSD or to an in-service event, disease, or injury. As to direct service connection, the Veteran states that he experienced symptoms in service and was diagnosed with sleep apnea right after separation. Medical records, however, show that the Veteran denied sleep difficulties at separation from service, and an initial diagnosis of possible sleep apnea is not evident until May 2006, decades after separation. He said that his wife told him "right after" separation that there were occasions that he stopped breathing in his sleep. This statement, however, lacks credibility, as it was made at the same Board hearing where he stated that he was diagnosed with sleep apnea "right after the military." If "right after the military" includes his diagnosis that occurred decades after separation, such an observation from his wife is of equally limited probative value. While his son states that he had observed episodes of apnea as far back as the son's adolescence, he was born the year the Veteran separated from service, so at best he has knowledge of the Veteran's condition 10 years after separation. The Board thus finds more probative the medical records establishing no symptoms in service and a provisional diagnosis in May 2006. As to secondary service connection, in November 2007 his treating sleep specialists attributed his sleep apnea to his deviated septum. As this disability is not service-connected, secondary service connection is not available to the Veteran on this basis. Rather, he claims service connection secondary to PTSD. It is unclear by what mechanism the Veteran believes his mental health condition caused the physical obstructions which underlies his sleep apnea. His only supporting medical evidence is the June 2013 form in which his treating psychiatrist listed sleep apnea among the symptoms that "applied" to his PTSD. Contemporary treatment records, however, make it abundantly clear that while the psychiatrist intended to indicate a relationship, the causation runs the opposite way. According to June 2013 treatment records, his sleep apnea contributes to his mental health symptoms, but there is no reason to believe that his mental health symptoms caused or aggravated obstructive sleep apnea. To the extent that his PTSD otherwise causes sleep difficulties, such symptoms are fully contemplated in the PTSD rating criteria. See 38 C.F.R. § 4.130, Diagnostic Code 9411. For these reasons, the Board finds that the evidence weighs against a finding that sleep apnea is related to PTSD or to an in-service event, disease, or injury, and service connection is therefore denied. The June 2019 JMPR instructed that the Board failed to address whether sleep apnea was aggravated by PTSD or whether an examination or medical opinion is required to answer such a question. To be clear, the Board finds no indication in the record that sleep apnea has been aggravated by PTSD. Indeed, it is unclear by what mechanism his mental health symptoms would aggravate the physical obstructions to his respiration. The only evidence in the record that indicates any relationship whatsoever consists of the Veteran's statements and the June 2013 form completed by his treating psychiatrist. Yet the Veteran has not articulated any basis for his belief that sleep apnea is caused or aggravated by his PTSD, and as discussed above, the Board finds that the June 2013 psychiatrist form clearly indicates that sleep apnea affects PTSD, not the other way around. The March 2021 JMPR instructed the Board to consider whether aggravation was shown or indicated by the March 2007 VA treatment record stating that the Veteran responded well to CPAP therapy initially, but had awakened with the mask off and intense anxiety, awakening from a dream with the fear that he is drowning. He discontinued CPAP due to this anxiety about being interrupted during his sleep. It is unclear how this record is supposed to indicate aggravation of sleep apnea. Even accepting the assumption that the anxiety about the CPAP machine was due to PTSD, there is no indication whatsoever that such anxiety worsened the underlying disability of sleep apnea. Rather, it interfered with treatment that is intended to improve the Veteran's sleep. Sleep apnea is rated based on the underlying disability before treatment, not how symptoms present after treatment. See 38 C.F.R. § 4.104, Diagnostic Code 6847. PTSD, on the other hand, is rated on criteria that fully contemplate sleep disturbances. To the extent that PTSD is causing the Veteran to get less restful sleep without worsening the physical disability of sleep apnea, he is already fully compensated for such manifestations by his PTSD rating. There is no indication in the record that PTSD has caused the Veteran's sleep apnea to become worse than the baseline. As such, the Board finds no competent evidence that PTSD caused or aggravated sleep apnea. Service connection is therefore denied and remand for an examination is unnecessary. REASONS FOR REMAND Entitlement to an initial evaluation in excess of 10 percent for bilateral hearing loss The Board finds that remand is necessary to assess the current severity of the Veteran's bilateral hearing loss. In its vacated November 2019 decision, the Board found that while the Veteran stated that his hearing loss had "worsened," the record did not indicate that it had worsened since his last VA examination. The March 2021 JMPR instructed that the Board failed to specific which treatment records it relied upon to make this finding. The Board notes that it relied upon all his treatment records, as none indicated such a worsening. In the interim, however, the Veteran has submitted a February 2021 statement in which he reported that his hearing loss had recently worsened. In light of this new evidence, remand for a new examination is appropriate. The matter is REMANDED for the following action: 1. Obtain and associate with the claims file any additional medical evidence that may have come into existence but has not been associated with the record. 2. Schedule the Veteran for a VA examination to determine the level of severity of his bilateral hearing loss. The examiner should report the extent of the Veteran's disability in accordance with VA rating criteria. The claims file must be reviewed by the examiner. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After completing the above, and any other development deemed necessary, readjudicate the appeal. If any benefit sought remains denied, return the appeal to the Board. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Gallagher, 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.