Citation Nr: 22017291 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 17-50 217 DATE: March 24, 2022 ORDER Entitlement to service connection for obstructive sleep apnea as secondary to posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The Veteran's currently diagnosed obstructive sleep apnea is not proximately due to or aggravated by the service-connected PTSD disability. CONCLUSION OF LAW The criteria for entitlement to service connection for obstructive sleep apnea as secondary to posttraumatic stress disorder (PTSD) have not been met. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.310 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1984 to October 1987. This matter came before the Board of Veterans' Appeals (Board) on appeal from a December 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2019 and October 2016, the Board remanded the claim for further development. Substantial compliance with the Board's prior remand orders is demonstrated. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Preliminary Matters The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Entitlement to service connection for obstructive sleep apnea as secondary to PTSD Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310 (a) (2018). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability. See 38 C.F.R. § 3.310 (b) (2017); Allen v. Brown, 8 Vet. App. 374 (1995). The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. A claimant bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). In making its ultimate determination, the Board must give an appellant the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Id. at 1287 (quoting 38 U.S.C. § 5107(b)). The Veteran asserts that his obstructive sleep apnea is secondary to his service-connected PTSD. He asserts that the condition resulted from the continuous nightmares and fear of going to sleep nightly due to the military sexual assault in service. See VA 21-526EZ, Fully Developed Claim, received September 22, 2016; NOD correspondence, received January 3, 2017. This secondary theory of service connection is the Veteran's sole contention as the Veteran does not contend that his obstructive sleep apnea began during service or is etiologically related to service. The Veteran has a current diagnosis of obstructive sleep apnea since September 2013. See, e.g., VA Polysomnography reports dated September 12, 2013, and January 13, 2014. On review, the Board finds that the evidence is against finding that the diagnosed obstructive sleep apnea is proximately due to or aggravated by the service-connected PTSD. Evidence in support of the claim includes the Veteran's assertions regarding the etiology of the Veteran's obstructive sleep apnea. Evidence weighing against the claim includes October 2016, November 2019, and November 2021 VA medical opinions. In October 2016, a VA examiner, a clinician with a specialty in occupational medicine, reviewed the Veteran's claims file. The examiner opined that the Veteran's obstructive sleep apnea was less likely than not proximately due to or the result of the Veteran's PTSD. The examiner reasoned that the Veteran's obstructive sleep apnea was consistent with his weight of 360 pounds and height of 70 inches which gave him a BMI of 51.56. The examiner explained that PTSD did not support the sleep apnea diagnosis and noted the Veteran had poor CPAP compliance per the medical records. In its April 2019 remand, the Board found the October 2016 opinion inadequate to the extent that the examiner did not address the Veteran's statements regarding his experiences in service and their connection to sleep apnea as well as aggravation of the obstructive sleep apnea by the service-connected PTSD. Therefore, in November 2019, another VA examiner reviewed the Veteran's claims file. The examiner opined that the Veteran's obstructive sleep apnea was less likely than not proximately due to or the result of the Veteran's service-connected PTSD based on the medical records and medical literature. The examiner explained that the two conditions are not medically related as obstructive sleep apnea is a separate disorder from PTSD and unrelated to it. The examiner noted that the medical literature did not support a causal medical relationship and cited to two medical articles in support of the opinion. The examiner noted that the likely cause of the Veteran's OSA was morbid obesity. The examiner further explained that not sleeping due to fear is not a cause of obstructive sleep apnea as the fear of sleeping has no impact of obstruction of the airway during sleep and morbid obesity does have an impact on the obstruction of the airway. The examiner noted that review of the service treatment records showed no evidence of diagnosis or treatment for sleep apnea on active duty; that snoring, unrestful sleep, gasping, trouble sleeping and insomnia re not pathognomonic for sleep apnea; and that the diagnosis of obstructive sleep apnea rendered after active duty was due to morbid obesity; thus, there is no nexus to active duty service. Regarding aggravation, the examiner noted that there was no clinical evidence showing that the obstructive sleep apnea was aggravated by any cause, including the Veteran's service-connected mental health conditions. In October 2021, the Board remanded the claim for a VA examination and medical opinion as the November 2019 medical opinion was based solely on review of the medical evidence although the prior remand had directed that a VA examination be obtained. In November 2021, a VA examiner opined that the Veteran's diagnosed obstructive sleep apnea was less likely than not proximately due to or the result of the Veteran's service-connected PTSD as obstructive sleep apnea is caused or due to a blockage of the airway. This opinion was based on a physical examination of the Veteran and review of the claims file and medical records. The examiner cited to the National Heart, Lung and Blood Institute to explain that sleep apnea occurs when the upper airway becomes repeatedly blocked during sleep, thereby reducing or completely stopping airflow. The examiner explained that it can be caused by a person's physical structure or medical conditions which include obesity, large tonsils, endocrine disorders, neuromuscular disorders heart or kidney failure, certain genetic syndromes, and premature birth. The examiner noted that while the Veteran reported that nightmares woke him from sleep and caused him to not want to go back to sleep, this would not cause obstruction or blockage of the airway. The examiner further stated that the current severity of the Veteran's obstructive sleep apnea was not greater than the baseline level of severity based on a comparison between the September 2013 polysomnogram report and the November 2021 Home Sleep Apnea Testing (HSAT) report. The Board finds the November 2019 and November 2021 VA medical opinions to be competent, credible and probative. They were authored by licensed medical professionals who have demonstrated that they are competent through education, training, and experience to offer their medical opinions. They reviewed the Veteran's claims file and treatment records, and the November 2021 examiner conducted a physical examination, and were therefore familiar with the Veteran's symptoms, diagnoses, and treatment of his obstructive sleep apnea and PTSD. Moreover, the opinions contain clear conclusions with supporting data connected by a reasoned medical explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Notably, there are no medical opinions or other competent medical evidence of record that weigh against the November 2019 and November 2021 opinions. Accordingly, the Board finds the November 2019 and November 2021 VA medical opinions highly probative, competent and persuasive medical evidence in this case. Furthermore, the evidence of record does not show a worsening or progression of the Veteran's obstructive sleep apnea. The November 2021 VA examiner noted that there was no change in the severity of the obstructive sleep apnea based on diagnostic testing. When first diagnosed in September 2013, the obstructive sleep apnea was classified as "severe" and there has been no change in the diagnosis. Thus, there is no evidence to support a claim of aggravation of obstructive sleep apnea by PTSD. (Continued on the next page) To the extent that the Veteran offers any statements relating obstructive sleep apnea as evidence that it was proximately due to or aggravated by his service-connected PTSD, the Board recognizes that while the Veteran is competent to offer testimony on observable symptoms of his sleep apnea and PTSD, as a lay person he has not been shown to be competent to provide evidence as to medical questions, particularly complex medical questions, such as determining the etiology of airway disorders. Jandreau v. Nicholson, 492 F.3d at 1376, 1377, n. 4 (Fed. Cir. 2007). The Board finds that the VA examiners' probative medical opinions outweigh the lay assertions in this case. In sum, the probative evidence of record demonstrates no relationship between the current obstructive sleep apnea and a service-connected disability. The probative evidence indicates that the Veteran's currently diagnosed obstructive sleep apnea is less likely than not proximately due to or aggravated by PTSD. For these reasons, the Board finds the probative evidence is against the claim and the appeal must be denied. Christopher J. O'Donnell Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Beach, Julia M. 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.