Citation Nr: 22015458 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 19-34 742 DATE: March 17, 2022 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is denied. FINDING OF FACT The Veteran's OSA is not related to service and was not caused or aggravated by a service connected disability to include posttraumatic stress disorder (PTSD). CONCLUSION OF LAW The criteria for service connection for OSA, secondary to PTSD are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 1966 to March 1969. This matter comes before the Board of Veterans Appeals (Board) on appeal from rating decisions issued in September 2018 by a Department of Veterans Affairs (VA) Regional Office (RO or AOJ). This case was previously before the Board in December 2021 when this issue was remanded for additional development. It has now returned to the Board for further appellate action. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board is aware that some of the Veteran's service treatment records are missing, and have been formally declared unavailable for review. See January 2009 VA Memorandum. In cases where service treatment records are unavailable, VA has a heightened obligation to explain its findings and to consider the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). This is not to say that there is a heightened benefit-of-the-doubt rule. Rather, VA has a heightened duty to consider the applicability of the benefit-of-the-doubt rule, to assist the claimant in developing a claim, and to explain its decision. Entitlement to Service Connection for OSA The Veteran contends that he suffers from OSA due to his service-connected PTSD disability. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A Veteran seeking compensation under these provisions must establish three elements: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. At the outset the Board notes that the available service treatment records are negative for complaints, treatment, or diagnosis of OSA. There is also no evidence of OSA being diagnosed until many years after service or that relates his OSA to his active service. The Veteran does not argue the contrary. Rather, he has consistently maintained that his OSA was caused or aggravated by his PTSD. 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 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) a current disability; (2) a service-connected disability; and (3) a nexus between the current disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1988). Compensation may be established for any incremental increase in disability or any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected disabilities, above the degree of disability existing before the increase regardless of its permanence. Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). The first and second Wallin elements are met. The evidentiary record contains a diagnosis of obstructive sleep apnea. See May 2017 private treatment record. Further, the Veteran is service connected for PTSD. See September 2018 rating decision. The crux of this case centers on whether there is an etiological relationship between the Veteran's OSA and the service-connected PTSD. Post-service treatment records indicate the Veteran's wife reported the Veteran snores a lot and sometimes has trouble catching his breath at night. A referral was made to discuss snoring and possible sleep apnea. See December 1995 private treatment record. An April 2017 private treatment record indicates the Veteran was initially diagnosed with OSA in 2011, and that he was found to have severe OSA with an AHI of 59.5 and placed on a CPAP. The record indicates the Veteran used the machine for two weeks and that he was unable to tolerate it and returned it back. It was also noted that the Veteran did not get any followup or any treatment until years later when he became more symptomatic to the point where he was unable to sleep well at night. A May 2017 sleep study indicated severe symptomatic OSA with an apnea-hypopnea index of 59.9. In an August 2018 private opinion letter, the Veteran's treating physician, Dr. V.A., indicated that based on recent studies, a relationship has been established between PTSD and OSA and that there is a higher incidence of OSA in patients with PTSD. Dr. V.A. opined that it is very likely that the Veteran's OSA could have resulted from complications of his military service in Vietnam, which resulted in PTSD and subsequent sleep apnea, and was thus likely a result of service years in the military. Dr. V.A. did not provide rationale underpinning the 2018 opinion. The "recent studies" were likewise not cited or discussed. The opinion was also couched in speculative terms. Such reduces further reduces the overall probative value, which was explained in the Board's remand. Bloom v. West, 12 Vet. App. 185 (1990). For these reasons the opinion is deemed inadequate for adjudication purposes. Upon remand, an addendum VA medical opinion was provided in January 2022. The examiner opined that it was less likely than not that the Veteran's OSA was caused or aggravated by his PTSD disability. The examiner explained that symptoms to include snoring, gasping, choking, easy awakening, trouble falling asleep, insomnia, startling awake, fitful sleep, movements during sleep, daytime somnolence, and fatigue, etc. are generalized symptoms with many possible explanations or etiologies. The examiner explained that while sleep disturbances such as insomnia are common with psychological conditions, they are mediated by the central nervous system and differ from the mechanisms of OSA which is due to airway obstruction associated with apneic episodes. The examiner stated there is no physiologic or anatomic mechanism by which psychological conditions can cause or aggravate OSA, to include medications-use to treat related psychological comorbidities as the effects of such could be ameliorated by discontinuing the medications or adjusting the dosage. The examiner further determined there was no evidence of aggravation of the Veteran's OSA. The examiner explained that OSA tends to progress over time, often requiring CPAP adjustments or changes in treatment modality. The examiner acknowledges that medical literature suggests a possible association between OSA and PTSD. However, the examiner emphasized that there is no medical literature to support that psychological comorbidities cause or aggravate OSA nor has their status as a risk factor been established in current, widely accepted, peer-reviewed medical literature, to include "Up to Date," a respected, professional medical resource. While the examiner did not directly mention the August 2018 private opinion letter from Dr. V.A., the examiner mentioned review of current, widely accepted, peer-reviewed medical literature, to include "Up to Date." The examiner also noted that the claims file had been reviewed, which have included the 2018 opinion letter. In conclusion, the VA examiner opined that the Veteran's OSA is less likely than not proximately due to, or aggravated by, the service-connected PTSD. The Board acknowledges the Veteran's contention that his OSA is related to his PTSD. However, as a lay person, the Veteran has shown no specialized training sufficient to render such an etiology opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In this regard, the etiology of OSA is a matter not capable of lay observation and requires medical expertise to determine. Specifically, the question of the causation or onset of such disorder involves a medical subject concerning an internal process extending beyond an immediately observable cause-and-effect relationship. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). This includes being able to attribute symptoms that are related to OSA. Consequently, the Board gives more probative weight to the competent evidence, i.e., the January 2022 addendum VA medical opinion which contains a clear conclusion with supporting data from the record connected by a reasoned medical explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Regarding direct service connection, there is no evidence, lay or medical, that the Veteran's OSA was incurred during service, onset in service, or is otherwise related to an event during service. The Board notes that the January 2022 addendum VA medical opinion also offered an opinion related to direct service connection. While the January 2022 VA medical examiner stated "it is medically possible" that the Veteran's OSA onset in service, the examiner ultimately concluded that it did not. Thus, the addendum VA medical opinion is not considered evidence of an incurrence or event in service. The Board also notes that the examiner referenced review of a September 2014 sleep study. See January 2022 addendum VA medical opinion. A review of the record indicates that neither the September 2014 sleep study, nor the 2011 sleep study referenced above, were associated with the claims file. Consideration has been given regarding the necessity of a remand. However, given that the second Shedden element of direct service connection has not been met, i.e., evidence of an incurrence or event in service, the adequacy of the opinion regarding direct service connection is not relevant. This conclusion is further bolstered by the fact that neither the Veteran nor his representative have claimed that the Veteran's OSA is directly related to service. Indeed, the record indicates the Veteran's wife's report of manifestations of sleep apnea in December 1995, more than two decades after service separation. A May 2018 statement from the Veteran's wife also notes that, while she has been married to the Veteran since November 1967, he was not diagnosed with OSA until 2011, and again later in 2017 when he was found to have severe OSA. In light of the foregoing, the Board concludes that the persuasive evidence is against the claim. The benefit of the doubt doctrine does not apply. The Veteran's claim for service connection for OSA secondary to PTSD, or on a direct basis, is denied. See 38 U.S.C. § 5107, 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 52 (1990). MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.