Citation Nr: 22012500 Decision Date: 03/04/22 Archive Date: 03/04/22 DOCKET NO. 15-00 567A DATE: March 4, 2022 ORDER The claim of entitlement to service connection for sleep apnea is denied. FINDING OF FACT The Veteran's sleep apnea is not a result of an in-service event, injury, or illness nor is it proximately due to or the result of a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. § 1101, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active-duty service with the United States Army from January 1992 to June 1992, June 14, 1997 to June 28, 1997, and February 2003 to April 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was afforded a hearing before the undersigned Veterans' Law Judge (VLJ) in June 2018. The Board previously remanded the Veteran's claim for entitlement to service connection for sleep apnea in March 2019 and again in June 2021. The RO issued a supplemental statement of the case (SSOC) in October 2021. This matter is now properly before the Board. SERVICE CONNECTION Service connection is warranted where the evidence of record establishes that an injury or disease resulting in a disability was incurred in the line of duty during active military service or, if an injury or disease pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) 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); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Service connection may also be granted for any disease diagnosed after military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. In order to prevail on the theory of secondary service connection, there must be evidence of a current disability; evidence of a service-connected disability; and evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). With a chronic disease shown 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). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for the evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in approximate balance, i.e., "nearly equal". When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). This benefit-of-the-doubt rule applies if the competing evidence is nearly equal but does not apply when the evidence persuasively favors one side or the other. See Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307, at *11 (Fed. Cir. Dec. 17, 2021). 1. Entitlement to service connection for sleep apnea. The Veteran contends that he should be service connected for sleep apnea. The Veteran does have a current diagnosis of sleep apnea, however, there is no evidence of record that the Veteran's sleep apnea was caused by an in-service event, injury, or illness, nor is there evidence that the Veteran's sleep apnea was caused by or proximately due to a service-connected disability. The Veteran was afforded a hearing before the undersigned VLJ in June 2018. The Veteran along with his representative provided testimony that the Veteran has had sleep problems for 17 years and the Veteran used a CPAP machine. The Veteran testified that sleep is one of his biggest issues. He also indicated that his anxiety and inability to do things like he once did, impacted him. The Veteran requested that the record remain open for an additional 60 days so that the Veteran may submit buddy statements that would provide evidence that the Veteran suffered from sleep problems and symptoms of sleep problems during service. A review of the record reflects that no such statements were ever in fact submitted. In March 2019, the Board remanded the Veteran's claim for service-connection for sleep apnea to obtain a VA examination, as the threshold to obtain an examination was met when considering the testimony provided during the June 2018 hearing. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In July 2020, the Veteran was afforded a VA examination. The July 2020 examiner conducted a review of the Veteran's medical records and found that the service treatment records show that the Veteran's examinations from October 1991, November 1996, August 2002 were all normal and without complaints of sleeping issues. The examiner noted that in September 2008 the Veteran complained that he had trouble sleeping and that he had chronic stomach problems. The examiner found that in an October 2010 service treatment note the Veteran complained about falling asleep, staying asleep and issues with impaired energy and memory. The examiner also noted that the Veteran complained of sleeplessness and restlessness in an April 2012 service treatment note. The Veteran was diagnosed with sleep apnea in August 2016. There is no evidence of a diagnosis prior to that date. The examiner noted that the Veteran indicated that onset was about 10-15 years ago. The examiner noted that the Veteran reported that he started having sleeping trouble and it was related to pain in his shoulder. The examiner noted that the Veteran said he had ongoing sleep issues and the sleep study confirmed that the Veteran had obstructive sleep apnea in August 2016. The July 2020 examiner opined that it was less likely than not that the Veteran's sleep apnea was incurred in or caused by the claimed in service injury, event, or illness. The examiner indicated that the Veteran reported gaining 40 pounds since leaving service and it is more likely that the Veteran's sleep apnea is related to the weight gain. The Board remanded the Veteran's claim again in June 2021 to obtain an addendum opinion as to service-connection for sleep apnea. The July 2020 examiner indicated that the Veteran's sleep apnea may be related to weight gain. The Board remanded to determine whether the Veteran's service-connected disabilities caused him to become obese and if so whether the Veteran's obesity was a substantial factor in causing or aggravating the Veteran's sleep apnea. In September 2021, a VA examiner provided an addendum opinion. In regard to the relationship between the Veteran's service-connected psychological disabilities, the examiner indicated that it is established medical knowledge and practice that psychological comorbidities, including anxiety and mood disorders do not cause or aggravate obstructive sleep apnea. The examiner stated that although sleep disturbances such as insomnia are common with psychological conditions, they are mediated by the central nervous system and differ from the mechanism of obstructive sleep apnea. The examiner further explained that obstructive sleep apnea is due to upper airway obstruction associated with apneic episodes. There is no physiologic or anatomic mechanism by which psychological conditions and cause or aggravate obstructive sleep apnea, including medications that are used to treat related psychological comorbidities. The examiner stated that sleep aids or sleeping pills, anti-anxiety medications, antidepressants, alcohol, etc. may cause sedation but they do not cause or aggravate the mechanism of obstructive sleep apnea. The examiner did note that studies suggest a possible association between sleep apnea and psychological conditions, however cause and effect, including aggravation has not been established in the current widely accepted peer reviewed medical literature. The September 2021 examiner noted that the information used to formulate the opinion was based on a review of Up to Date, a respected, professional medical resource. The examiner opined that it is less likely than not that the Veteran's obstructive sleep apnea is due to the Veteran's psychological comorbidities. The examiner also opined that it is less likely than not that the Veteran's obstructive sleep apnea was aggravated beyond its natural course due to any cause, including the Veteran's related psychological comorbidities. The examiner stated that the rationale provided also applies to medications or alcohol used. The studies cited within the examiner's rationale addressed the possible association between psychological comorbidities and obstructive sleep apnea; however, the authors of the studies did not draw a conclusion as to cause or aggravation. It is less likely than not that the Veteran's obstructive sleep apnea is due to or incurred in the Veteran's psychological conditions. The September 2021 VA examiner also provided an opinion and rationale as to whether obstructive sleep apnea was caused by or aggravated by the Veteran's obesity. The examiner determined that the Veteran was obese for a significant amount of time prior to his diagnosis of obstructive sleep apnea, which was diagnosed in August 2016. The examiner reviewed the Veteran's records and determined that the Veteran had a BMI of 30 in November 2004 and a BMI of 31 in October 2010; obstructive sleep apnea was not diagnosed until 2016. The examiner agreed that obesity is a risk factor for obstructive sleep apnea, but it does not substantiate the Veteran's weight or obesity as the cause of the Veteran's obstructive sleep apnea. The examiner stated that other factors include family history, body habitus, sleep habits, sleep position, anatomy of the oropharynx, etc. The examiner found that the Veteran does not have a diagnosis of an eating disorder and that there is no evidence of record that the Veteran's psychological conditions have substantially influenced the Veteran's weight. The examiner opined that it is less likely than not that the Veteran's obesity caused or has aggravated the Veteran's obstructive sleep apnea. The examiner noted that there is no evidence of aggravation beyond the natural course due to any cause. The examiner determined that it is more likely that the Veteran would have developed obstructive sleep apnea even in the absence of obesity and that obesity cannot necessarily be attributed to any one factor. The September 2021 examiner reviewed the Veteran's service-connected conditions: shoulder, back, knee and psychological conditions. The examiner conceded that orthopedic injuries may limit the ability to exercise but that is only one factor that leads to obesity. The examiner opined that the Veteran's weight gain is not attributed to psychological factors and there is no eating disorder diagnosed as attributable to those psychological conditions. The examiner determined that based on the records, the Veteran was clearly obese for one decade prior to the onset and diagnosis of obstructive sleep apnea. The Board has carefully reviewed the Veteran's claims file and finds that the July 2020 and September 2021 VA examiners provided a complete rationale for their opinions. The Board finds both the July 2020 and September 2021 examiners to be competent, credible and that their opinions are highly probative. The examiner discussed direct causation, as well as causation secondary to a service-connected psychiatric disorder, including consideration of the development of obesity. The Board recognizes that the Veteran believes his sleep apnea manifested as a result of his military service or as secondary to a service-connected disability. However, the record does not contain evidence demonstrating that the Veteran has the requisite training or expertise to provide such a complex medical opinion. As such, the Board gives more probative weight to the findings provided by the trained medical examiners in this case. The Board has carefully and sympathetically reviewed the Veteran's claims file. Unfortunately, there is no evidence of record that supports a finding that the Veteran's sleep apnea was caused by or proximately due to an in-service event injury or a service-connected disability. CONTINUED ON NEXT PAGE The Board finds that the evidence is persuasively against granting service-connection for sleep apnea and the claim must be denied. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Hailu, 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.