Citation Nr: 22069925 Decision Date: 12/18/22 Archive Date: 12/18/22 DOCKET NO. 18-17 992 DATE: December 18, 2022 ORDER Service connection for obstructive sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD), is denied. FINDING OF FACT The evidence of record persuasively weighs against finding that the Veteran's obstructive sleep apnea began during service, or is otherwise due to service, or is due to, caused, or aggravated by his service-connected PTSD. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea due to service or service-connected PTSD are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 2010 to September 2014. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for obstructive sleep apnea as secondary to the service-connected disability of PTSD with depression. This case was previously before the Board in May 2019, when the issue of entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected PTSD, was remanded to obtain outstanding VA and private medical records, and to forward the Veteran's claims file to an appropriate examiner for a supplemental opinion on the etiology of the Veteran's sleep apnea because the March 2017 opinion had not adequately addressed secondary service connection. See May 2019 Board decision. The RO obtained outstanding VA treatment records, sent the Veteran VA Form 21-4142a and requested outstanding private treatment records in November 2019, and obtained an examiner's supplemental opinion in December 2019. As such, the Board finds that there has been substantial compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran contends that his obstructive sleep apnea is related to service as he states that his sleep apnea symptoms began while on active duty. In the alternative, he contends that his sleep apnea is secondary to his service-connected PTSD. A veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also 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). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be awarded on a secondary basis if a claimant suffers a disability that is "proximately due to or the result of a service-connected disease or injury." 38 C.F.R. § 3.310(a). A condition can be awarded secondary service-connection if the disability was caused or aggravated by the service-connected disease or injury. See, e.g., El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). In making all determinations, the Board must fully consider the lay assertions of record. Lay evidence can be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d at 1376-77. When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d at 1376-77. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence persuasively favors one side or the other. Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021). The Veteran is entitled to the benefit of the doubt when the evidence is in approximate balance or "nearly equal," and does not require that the evidence be in exact equipoise. Id. As to the first element of service connection, which is the existence of a present disability, a January 2016 medical record indicates the Veteran underwent a sleep study and was found to have sleep apnea. VAMC records from November 2016 and July 2017 confirm a diagnosis of sleep apnea. As noted above, the Veteran contends that his sleep problems began during service. Although the Veteran is competent to report sleep related symptoms as this is within his lay observation, he is not competent to relate such symptoms to his sleep apnea diagnosis. Such a determination is a complex medical question and the Veteran has not demonstrated the required medical expertise to much such a determination. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (noting that a lay claimant is not competent to provide evidence as to complex medical questions). Moreover, the Board notes that although the Veteran contends that his sleep symptoms began during service, such is not supported by his service treatment records. Service treatments records are silent for reports of sleep apnea or related symptoms. Also significantly, a July 2015 general VA examination report conducted shortly after separation from service did not find sleep apnea. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than subsequently reported history); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board may discount the credibility of evidence in light of its relationship to other items of evidence). March 2017 and December 2019 VA examiners reviewed the claims file and opined that the Veteran's sleep apnea was not related to service. After reviewing the Veteran's service records, as well as post-service sleep apnea treatment records, the examiner concluded that a diagnosis of sleep apnea during service was not supported, nor was sleep apnea related to service. When read together, the Board finds the opinions to be adequate and probative in that it is based upon an examination of the Veteran, a review of the claims file, and is both clear and comprehensive. There is not competent evidence relating sleep apnea to service. The only competent evidence of record in regards to whether sleep apnea is related to service are the negative March 2017 and December 2019 medical opinions. Accordingly, service connection on a direct basis is not warranted. In the alternative, the Veteran contends that his sleep apnea was caused or aggravated by his PTSD. Here, the Veteran has a current sleep apnea diagnosis and is service-connected for PTSD. Therefore, the remaining issue is whether there is competent evidence establishing that the Veteran's PTSD caused or aggravated his sleep apnea. The March 2017 DBQ examiner opined that the Veteran's sleep apnea is less likely than not proximately due to or the result of the Veteran's PTSD. The examiner listed causes of sleep apnea as excess weight, thick neck, narrowed airway, being male, being older, family history, smoking, nasal congestion, and use of alcohol, sedatives, and tranquilizers. The list does not contain PTSD. The examiner also referenced an article entitled, "Preparing Your Claim for Sleep Apnea Secondary to Medication You Take for PTSD and or MDD," which, along with instructions for substantiating a VA claim, referenced a study that showed a strong correlation of comorbidity between PTSD (or any other anxiety/mood disorder) and sleep apnea in a sample of Veterans, and a second study that showed similar results in a sample of active duty personnel. The examiner addressed the articles by explaining that they do not show PTSD causes sleep apnea. The examiner then cited a sleep medicine specialist, who indicated that sleep apnea may predispose people to PTSD, rather than the reverse. The examiner concluded that while it is within the realm of possibility that PTSD causes sleep apnea, there is no conclusive evidence that shows more than an association, and therefore it would be speculative, at best, to assert a causal relationship. The December 2019 DBQ examiner opined that the Veteran's sleep apnea is less likely than not proximately due to or the result of PTSD with supporting rationale that sleep apnea is a structural collapse of the upper airway that is unrelated to psychiatric issues, sleep apnea is a coincidental finding in a patient with PTSD, sleep apnea is not caused by PTSD, and in most cases sleep apnea aggravates PTSD due to use of a CPAP mask. The examiner opined that the Veteran's sleep apnea was not as least as likely as not aggravated beyond its natural progression by service-connected PTSD. The examiner supported the opinion with rationale that there have been no changes or deviation from natural progression and the Veteran uses a CPAP machine to help with breathing at night, as do other patients with sleep apnea. When read together, the Board finds these medical opinions to be adequate and highly probative. The examiners reviewed the Veteran's lay statements and addressed contentions, and the opinions were clear, comprehensible, and consistent with the record. The Veteran contends that his service-connected PTSD is causing or aggravating his sleep apnea. Although he is competent to describe sleep symptoms, he is not competent to link such symptoms to his PTSD as this is medically complex, requiring knowledge of the interplay between sleep issues and mental health issues and an interpretation of diagnostic testing. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To the extent that the Veteran has submitted another Board decision, pertaining to a different Veteran, to support his contentions, the Board notes that not only are Board decisions not binding on other Board decisions, but the facts of that decision are distinct from the facts of the instant appeal. In that case, the Veteran submitted medical opinions that it was at least as likely as not that the Veteran's obstructive sleep apnea was aggravated by his PTSD. The Board found that both opinions were based on knowledge and consideration of that Veteran's pertinent medical history as well as treatment of that Veteran's sleep apnea and PTSD and were adequately supported by sufficient rationale. Here, the Veteran has provided no such opinions. Therefore, the Board is not persuaded by the decision submitted by the Veteran. The Board has also considered the medical articles and research submitted regarding a relationship between PTSD and sleep apnea; however, the Board finds the probative value of these articles is limited. These articles were specifically considered by the VA examiner, and the articles are not specific to the Veteran's particular circumstances. Here, the Board acknowledges the Veteran's lay statements regarding his service-connected headaches. However, such reading of his lay statements appears to assert that his sleep apnea makes his headaches worse, not vice-versa. Thus, development regarding sleep apnea and service-connected headaches is not warranted. Continued on the next page As outlined, the Board finds the most persuasive evidence of record is against a finding that the Veteran's obstructive sleep apnea either began during service, is due to service, or was caused or aggravated by his service-connected PTSD. The evidence persuasively weighs against service connection and therefore the benefit of the doubt doctrine is not applicable to this claim. Lynch, 999 F.3d at 1391. S. Sorathia Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Shealy, 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.