Citation Nr: 22015409 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 17-23 243 DATE: March 17, 2022 ORDER Entitlement to service connection for sleep apnea, to include as secondary to the service-connected posttraumatic stress disorder (PTSD), is denied. FINDING OF FACT The weight of the evidence supports that the Veteran's sleep apnea is not related to service nor caused or aggravated by a service-connected PTSD. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1982 to April 1990; March 2003 to March 2004; and from March 2005 to September 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was last before the Board in August 2021, when it was remanded for further development. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, to prove service connection there must be: (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 established for a disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran contends that his sleep apnea had its onset during service. Specifically, he contends that during his numerous duty tours, he reported waking up at night and not getting a full night rest. He stated his unit doctor attributed the problem to his PTSD, and he was prescribed numerous medications for sleep issues. Alternatively, he contends that sleep apnea is secondary to his service-connected PTSD. The Board concludes that, while the Veteran has a current diagnosis of sleep apnea, the weight of the evidence is against finding that the obstructive sleep apnea began during or is related to service, or is otherwise caused or aggravated by his service-connected PTSD. Service treatment records show no treatment for or diagnosis of sleep apnea during service. On his April 1985, February 1990, September 1992, April 1997, October 2002, December 2005 and August 2006 reports of medical history, the Veteran denied having trouble sleeping and shortness of breath. Although the Veteran asserts that he exhibited continuous symptoms of sleep apnea, other than difficulty sleeping, ever since 2004, the Board finds that such assertions are not consistent with the evidence of record. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (finding that in weighing credibility, VA may consider inconsistent statements, internal inconsistency, and consistency with other evidence of record). The August 2006 report of medical history shows that the Veteran denied any history of shortness of breath upon his discharge from active duty. Thereafter, the record shows no complaints of symptoms prompting a treatment provider to order a sleep study until March 2015. Notably, a May 2011 correspondence show that the Veteran contended a claim for "chronic fatigue syndrome", noting fatigue, muscle pain, headaches and restless sleep but there was no mention of loud snoring, choking, or gasping for air during the night. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). In March 2015, the Veteran reported he was worried about having obstructive sleep apnea, and he has awakened himself snoring loudly. It was noted that he could have obstructive sleep apnea based on his symptoms and his airways appearance. An April 2016 sleep study confirmed the diagnosis of mild obstructive sleep apnea. The Board finds the contemporaneous medical evidence to be significantly more credible and probative than the statements submitted to VA for purposes of seeking compensation. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's statement simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (the Board can consider bias in lay evidence, the significant time delay between the affiants' observations and the date on which the statements were written, and conflicting statements of the veteran in weighting credibility). In August 2016, a VA examiner opined that the Veteran's sleep apnea is not proximately due to or the result of his PTSD. The examiner noted that a review of all available medical records shows no complaints consistent with symptoms of obstructive sleep apnea. The examiner explained that the important risk factors of obstructive sleep apnea are advancing age, male gender, obesity, and craniofacial or upper airways soft tissue abnormalities. Additional risk factors identified in some studies include smoking, nasal congestion, menopause and family history. The examiner further explained that rates of obstructive sleep apnea are increased in association with certain medical conditions, such as pregnancy, end-stage renal disease, congestive heart failure, chronic lung disease, and stroke. Regarding the recent study linking PTSD and sleep apnea, the examiner notes that the study is still in preliminary stages. The examiner notes that obstructive sleep apnea is a disease with a clear etiology and diagnosis. Thus, it is less likely than not that the Veteran's obstructive sleep apnea was proximately due to the result of an injury, event or condition incurred while in military service. In June 2020, a VA examiner opined that the Veterans condition was less likely than not incurred in or caused by in service injury, event or illness. The examiner notes that the Veteran's multiple in-service physicals are silent for sleep concerns and snoring. The examiner notes that medical literature does not support obstructive sleep apnea being caused by PTSD. She explains that the most common cause of obstructive sleep apnea is excessive weight and obesity which is associated with soft tissues of the mouth and throat. During sleep when the throat and tongue muscles are more relaxed, the soft tissues can cause the airway to become blocked. In addition to obesity, other anatomical features associated with obstructive sleep apnea, many of them hereditary, include a narrow throat, thick neck and round head. The examiner further explains that sleep apnea and PTSD are considered to be two distinct and separate medical conditions. Researchers has established an association between the two conditions due to the effect of disrupted sleep on the outcome measured of health and wellbeing and Veterans. However, to date there is no established etiological basis for obstructive sleep apnea due to PTSD. The pathophysiology of obstructive sleep apnea is related to loose floppy tissues occluding the upper airway during relaxation of sleep. PTSD disrupts sleep due to frequent nightmares awakenings related to psychological and emotional issues, nightmares, anxiety, depression and low threshold of being startled awake. Obstructive sleep apnea has not been found to be approximately due to PTSD. In November 2021, a VA examiner opined the Veteran's sleep apnea is not proximately due to or aggravated as a result of his PTSD. The examiner provided the rationale that obstructive sleep apnea and PTSD are not medically related. Obstructive sleep apnea is a separate entity entirely from the PTSD and unrelated to it. The examiner notes that a thorough review of medical literature failed to demonstrate a causal relationship. Additionally, the examiner notes that a thorough review of medical literature and the Veteran's medical records failed to show that that the Veteran's service-connected PTSD aggravated his sleep apnea. Upon review of the record, the Board finds that the weight of the evidence is against the claim. The Board finds the combined VA examiners' opinions highly probative and entitled to great weight. The examiners reviewed the claims file; examined the relevant facts; and provided reasoned and detailed rationale for the conclusions reached that included citing to medical literature. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Accordingly, the combined opinions are highly probative and persuasive and support a finding that the Veteran's sleep apnea is not caused by or aggravated by his service-connected PTSD. Finally, to the extent that the Veteran, his mother and aunt believe the Veteran has a current diagnosis of sleep apnea that is related to service or that he suffered from sleep apnea contemporaneous to service, as lay persons, they are not competent to provide an opinion as to the diagnosis or etiology of sleep apnea in this case. In this regard, the issue is medically complex, as it requires medical testing and medical expertise to determine. Thus, the lay opinions are not competent medical evidence of a diagnosis of sleep apnea or of a nexus between the Veteran's current sleep apnea and service. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board finds the combined opinions of the VA examiners to be significantly more probative than the lay assertions. In sum, the most probative evidence of record is against finding that the Veteran's current sleep apnea was incurred in or otherwise related to his service or service-connected PTSD. As the weight of the competent and probative evidence is against the claim, service connection for sleep apnea, to include as secondary to the service-connected PTSD is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. James Springer Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Asare, 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.