Citation Nr: 23006288 Decision Date: 02/01/23 Archive Date: 02/01/23 DOCKET NO. 18-33 314 DATE: February 1, 2023 ORDER Service connection for sleep apnea to include as secondary to a lumbar spine disability is denied. FINDING OF FACT The Veteran's sleep apnea is not caused or aggravated to service-connected lumbar spine disabilty. CONCLUSION OF LAW The criteria for service connection for sleep apnea due to a service-connected lumbar spine disability 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 January 2004 to January 2007, and from July 2015 to September 2015, with additional reserve service. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Board remanded this matter for additional development. Thereafter, VA records were associated with the claims file and in November 2019, the Veteran underwent a VA examination and the examiner provide a medical opinion with rationale addressing secondary service connection, to include aggravation and regarding medications prescribed to treatment his service-connected back disability. As such, the Board now finds that there has been substantial compliance with its prior remand directives. Entitlement to service connection for sleep apnea to include as secondary to a lumbar spine disability The Veteran contends that his sleep apnea was caused or aggravated by service- connected lumbar spine disability, to include medication taken for treatment of this disability. The Veteran has not asserted that sleep apnea onset during active service, but was caused by symptoms from the service-connected lumbar spine disability and/or as a side effect of prescription medication. Because the Veteran has not raised, and the record does not reasonably raise, entitlement to direct service connection, the Board's adjudication will consider only entitlement to secondary service connection. Regulations provide that service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disorder may be service connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439, 449 (1995); 38 C.F.R. § 3.310(b). In order to establish entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The question for the Board is whether the Veteran has a current disability that is at least as likely as not proximately due to or aggravated by his service-connected lumbar spine disability. Regarding a current disability, a July 2016 VA treatment record shows that the Veteran underwent a sleep study which assessed the Veteran with obstructive sleep apnea. Additionally, an April 2017 VA sleep apnea disability benefits questionnaire (DBQ) shows that the Veteran was diagnosed with obstructive sleep apnea in 2016. As such, the competent evidence establishes a current disability. The record reflects that the Veteran is service-connected for a lumbar spine disability, rated as 10 percent disabling from September 30, 2015 and 40 percent from May 11, 2022. Regarding a nexus, the Veteran reported that disability onset in 2016 with snoring per the 2017 DBQ. The Veteran was noted to using a CPAP with good results. After a review of the Veteran's claims file, the VA examiner opined that it was less likely than not that sleep apnea was related to the service connected lumbar spine. The VA examiner's rationale noted a review of medical literature indicated that sleep apnea was the result of structures of the back of throat falling back blocking airflow to the lungs resulting in sleep apnea which suggested there was no anatomical relationship between the back and sleep. The Board, in a June 2019 remand, determined that the 2017 VA DBQ was inadequate as the VA examiner did not address the use of medication for the lumbar spine disabilty and also did not address aggravation analysis of the disabilty. A November 2019 VA sleep apnea DBQ, shows that sleep apnea was not aggravated beyond its natural progression by the service-connected lumbar spine disability. The VA examiner noted that the weight of the literature did not support a back condition as aggravating sleep apnea and based on his BMI readings in June 2016 as compared to September 2019, the Veteran's sleep apnea condition had improved with CPAP treatment, despite continued back pain. Additionally, the VA examiner noted that medication taken for the lumbar spine disabilty identified as gabapentin and oxycodone, but that medical literature did not support these medications as causing or aggravating sleep apnea. The examiner added that the Veteran's records showed that a review of his CPAP records showed good nights and bad without correlation with pain or sleeping medication usage. The Board concludes that, while the Veteran has a current disability of sleep apnea, the evidence of record persuasively weighs against finding that the Veteran's sleep apnea is proximately due to or the result of, or aggravated beyond its natural progression by service-connected disability. 38 U.S.C. § 1110; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310. Concerning the secondary service connection theory of entitlement, the April 2017 and November 2019 VA examiners opined that the Veteran's sleep apnea was less likely than not caused or aggravated by service-connected lumbar spine disability. The Board notes that the April 2017 VA examination report did not discuss aggravation, however, it did address proximate cause and provide a rationale describing the lack of an anatomical relationship. Meanwhile, the November 2019 VA examination report discussed not only aggravation but an additional assertion of his medication for the lumbar spine disabilty and its effect on the sleep apnea disability, as such it is probative on the aggravation aspect of secondary service connection. The Board places weight on the 2019 opinion as the report shows that the examiner conducted a thorough review of the Veteran's medical records and was familiar with relevant facts. Additionally, the examiner stated that a review of medical literature did not list sleep apnea as adverse effective from either gabapentin or oxycodone (prescribed for the lumbar spine disability) with a statement that further literature did not support gabapentin causing sleep apnea, to address a concern raised by the Veteran. noted that a review of the medical records as well as medical literature did not show that a lumbar spine disabilty could cause or aggravate sleep apnea. For these reasons, the Board finds the VA medical opinions to be persuasive. Additionally, the record contains no other medical opinion of record to support the Veteran's assertions. See 38 U.S.C. § 5107(a). To the extent the Veteran asserts that sleep apnea is secondary to service-connected lumbar spine disability, as a lay person he does not have the medical expertise to diagnose sleep apnea or determine its onset. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which he or she has first-hand knowledge). Although competent to report sleep symptoms, the Veteran is not competent to attribute sleep symptoms to one diagnosis or another, as such requires knowledge of medical and anatomical relations. As such, the Veteran's statements regarding etiology are not competent and lack weight. For the reasons states above, the Board places much regarding weight on the competent medical evidence of record. Accordingly, the competent and probative evidence persuasively weighs against the claim of service connection for a sleep apnea secondary to a lumbar spine disability; there is no doubt to be resolved; and service connection, is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dworkin, 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.