Citation Nr: 21042123 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 19-34 145 DATE: July 12, 2021 ORDER Service connection for obstructive sleep apnea (OSA), including as secondary to post-traumatic stress disorder (PTSD), is denied. FINDING OF FACT The preponderance of evidence does not support a finding of service connection for OSA, including as secondary to PTSD. CONCLUSION OF LAW The criteria for service connection for OSA due to service or secondary to PTSD 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 served in active duty in the U.S. Army from November 1964 to September 1966. This matter comes to the Board of Veterans' Appeals (Board) on appeal from November 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Board remanded the claim with a directive to obtain a VA examination to determine the nature and etiology of the Veteran's OSA and opine whether it is as likely as not proximately due to service-connected PTSD or aggravated beyond its natural progression by PTSD. In August 2020, the RO attempted to schedule a VA examination. In October 2020, the RO was informed that scheduling was on hold due to Covid-19. The examination scheduler stated that the Veteran requested to postpone scheduling his examination because of his age and high risk for contracting Covid-19. The RO followed up with the examination scheduler in December, February, and March 2021. In March 2021, the examination scheduler stated that the Veteran requested to postpone scheduling his examination because of Covid-19, and that the scheduler asked him to contact them when he felt safe." In May 2021, a VA examiner reviewed the Veteran's claims file and interviewed the Veteran. She then provided an opinion regarding whether the Veteran's OSA was caused or aggravated by his PTSD. Even though there was no physical examination, the Board finds that there was substantial compliance with the remand directive because he was interviewed and the clinician reviewed the claims file, and the clinician provided rationales for her opinions. There is no question as to whether he has OSA and he was able to communicate his contentions to the clinician during the interview. See Stegall v. West, 11 Vet. App. 268 (1998). VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012. 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. §§ 3.102, 3.156(a), 3.159; Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board finds that the February 2020 letter sent to the Veteran satisfies the duty to notify. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The VCAA also requires the VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). The Board finds that the duty to assist has been satisfied. In that regard, VA examination reports, lay statements, and VA and private medical treatment records, have all been associated with the record. The RO attempted to obtain the Veteran's Social Security Administration (SSA) records. In January 2020, SSA informed the RO that the Veteran's medical records had been destroyed, and the RO notified the Veteran about this in February 2020. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). 1. Service connection for obstructive sleep apnea. The Veteran asserts that his OSA was caused or aggravated by his service-connected PTSD. 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 may also be granted on a secondary basis 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). Secondary service connection may also be granted for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish entitlement to service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Regarding direct service connection, the Board concludes that, while the Veteran has a current diagnosis of OSA, the preponderance of the evidence weighs against finding that the Veteran's OSA began during service or is otherwise related to an in-service injury, event, or disease. He has not asserted that his OSA is directly related to service, and the record does not support direct service connection. The Veteran's Report of Medical History enlistment and separation examinations list his health as "good" and include a denial of "frequent trouble sleeping." His service treatment records (STRs) also do not note sleep-related symptoms. His post-service treatment records do not indicate a link between OSA and his period of active service. As discussed below, he reported onset of symptoms many years after service, in approximately 2011. He has not provided lay evidence to support the theory of direct service connection. Direct service connection is not warranted. Regarding secondary service connection, the record contains conflicting medical opinions regarding whether the Veteran's OSA is at least as likely as not caused by his service-connected PTSD. The May 2021 VA examination clinician opined that it was not. During her interview with the Veteran, he stated that his OSA began about 10 years ago. He stated that he had a double lung transplant and that he "had it then." He stated that when he was in the emergency room for arrythmia, he was sent for a sleep study. He stated that he still had "restless sleep at night, bad dreams and stuff, you know from where I was over in Vietnam and that bothers my sleep a lot." The examiner concluded that the Veteran's OSA was not caused by his PTSD. In her rationale, the clinician said, "The conditions of OSA and PTSD are not medically related. The OSA is a separate entity entirely from the PTSD and unrelated to it." She cited to several studies to support her opinion. She stated that one study found an association, "though inconsistent" between PTSD and sleep disordered breathing "without clarity as to whether sleep apnea predisposes to PTSD or the other way around." She further explained that, "sleep apnea can be caused by a person's physical structure or medical conditions. These include obesity, large tonsils, endocrine disorders, neuromuscular disorders, heart or kidney failure, genetic syndromes and premature birth." She stated that the Veteran's obesity, with a BMI of 30.1 in 2017, was the "most likely cause of OSA." She also stated that the Veteran's lay statements and prior medical opinion are not supported by literature. The May 2021 VA clinician's opinion is probative, because it is based on an interview with the Veteran, an accurate medical history from his claims file, review of multiple studies, and the examiner provided an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Consequently, the Board finds it is more persuasive and gives it greater weight. The February 2019 opinion from the Veteran's treating clinical psychologist, Dr. P. M., states [a]fter hearing all of the events the Veteran experienced in Vietnam, and all the symptoms of PTSD, I continue to believe that [the Veteran's] diagnosis of sleep apnea is more likely than not due to the many sleep problems caused by severe PTSD he contracted during his time [in service] and from nowhere or nothing else. There is no evidence that Dr. P. M. reviewed medical evidence in the claims file. Instead, the opinion appears to be based solely on the Veteran's self-reported medical history and Dr. P. M. did not have the benefit of the review of the Veteran's other medical records to allow him to provide a thorough opinion. As noted in the January 2020 Board remand, Dr. P. M.'s explanation is not clear. The February 2019 opinion is afforded less probative weight than the findings of the VA clinician. The May 2021 VA opinion is more probative and persuasive than the private psychologist's opinion because it is supported by a well-reasoned rationale and the clinicians had reviewed the complete record as well as interviewed the Veteran before rendering an opinion. Thus, greater weight is assigned to VA opinion regarding causation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), Barr v. Nicholson, 21 Vet. App. 303 (2007), Stefl v. Nicholson, 21 Vet. App. 120 (2007), Prejean v. West, 13 Vet. App. 444 (2000). Additionally, the Veteran's medical treatment records do not support a nexus between his OSA and PTSD. The VA treatment records note the Veteran's complaints of insomnia, bad dreams, and sleep disturbance. They also include repeated references to obesity as a health risk factor for OSA, and frequent offers of enrollment in weight management program services which the Veteran declined. In May 2017, the Veteran was diagnosed with "severe" OSA and a CPAP machine is prescribed. In September 2017 the Veteran noted difficulty sleeping despite use of CPAP machine. He was diagnosed with complex OSA and a BiPAP was recommended. The preponderance of the evidence is against service connection for the Veteran's OSA under the theory that it is caused by his PTSD. Regarding whether his OSA is aggravated by his PTSD, the May 2021 VA clinician explained that, "OSA is a common disorder characterized by narrowing or collapse of the pharyngeal airway during sleep. It is caused by anatomical variations in the craniofacial features and/or neck." She explained that "[a] M[ental] H[ealth] condition cannot cause closure of the airway and thus cannot cause increased closures of the airway i.e. aggravation. No aggravation is plausible." The clinician's opinion and accompanying explanation are detailed and highly persuasive. They were provided after a review of the record and an interview with the Veteran There is no private medical opinion that addresses aggravation. The preponderance of the evidence is against service connection for the Veteran's OSA under the theory that it was aggravated by his PTSD. The Veteran contends that his OSA is secondary to his service-connected PTSD. While he is competent to describe his difficulty sleeping, he is not competent to provide an opinion regarding the etiology of his OSA. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body as well as the impact of a psychiatric disorder on the body. These are internal processes that are not readily observable. 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). His lay opinion is not competent evidence and does not support his claim. In September 2014, August 2018, and February 2020 the Veteran had VA examinations to assess his PTSD. His wife told an examiner that the Veteran "doesn't sleep well. Gets up several times from war dreams." Diagnoses of PTSD and symptoms of sleep impairment, anxiety and depression are noted in these reports. However, while these clinicians list poor sleep as a symptom of PTSD, anxiety, and depression, but they do not state that there is a causal link between PTSD and OSA condition, or that his PTSD is making his OSA worse. The PTSD examination reports do not support his claim. (Continued on the next page) For the foregoing reasons, the preponderance of evidence is against finding a service-connection for OSA, including as secondary to PTSD. There being no reasonable doubt remaining to be resolved, the claim is denied. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kathleen M. Fiorillo, 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.