Citation Nr: 25002575 Decision Date: 02/24/25 Archive Date: 02/24/25 DOCKET NO. 19-26 039 DATE: February 24, 2025 ORDER Entitlement to service connection for obstructive sleep apnea (OSA), to include secondary to service-connected diabetes mellitus, type II (DMII), and/or posttraumatic stress disorder (PTSD), is denied. FINDING OF FACT The evidence of record is persuasively against finding the Veteran's OSA was first incurred in service, within a year of service, or was caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for OSA, to include secondary to service connected DMII, and / or PTSD, are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1968 to August 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Briefly, the Veteran initially filed his claim for service connection for obstructive sleep apnea (OSA) in August 2018. The claim was denied in an October 2018 rating decision. The Veteran timely submitted a Notice of Disagreement (NOD) and a Statement of the Case (SOC) was provided to the Veteran in August 2019. Later in August 2019, the Veteran submitted his VA Form 9, perfecting his appeal to the Board. In connection with this appeal, the Veteran testified before the undersigned Veterans Law Judge (VLJ) in September 2022. A copy of the transcript has been associated with the record. In May 2023, the Board remanded the claim. After further development, the Veteran was provided a Supplemental Statement of the Case (SSOC), continuing the denial of his claim. The claim returned to the Board in April 2024, and the Board remanded the claim again for additional development. The claim has now been returned for additional appellate consideration. The Board finds that there has been substantial compliance with the April 2024 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall). Entitlement to service connection for OSA, to include secondary to diabetes mellitus, type II and/or PTSD, is denied. The Veteran contends that his diagnosed OSA is a result of his active-duty service, testifying at his Board hearing that he experienced OSA since service. Alternatively, he suggested that it is due to his service-connected diabetes mellitus type II (DMII) and / or posttraumatic stress disorder (PTSD). Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. See 38 C.F.R. § 3.310; but see Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023) (holding all that is needed is a "but for" causation or aggravation to show entitlement to secondary service connection). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). OSA is not a disability for which the presumptions related to chronic conditions applies. If a Veteran was exposed to an herbicide agent during active service, certain diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service, provided further that the rebuttable presumption provisions of § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The diseases for which presumptive service connection based on herbicide exposure is available do not include OSA. 38 C.F.R. § 3.307(a)(6)(ii). Even if a disability cannot be presumptively linked to service, however, due consideration is given whether the condition can nonetheless be attributed to service directly or by any other reasonably raised theory. See Combee v. Brown, 34 F.3d 1039 (1994). In that regard, under the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act), Section 303, implemented in 38 U.S.C. § 1168, requires a disability examination and medical opinion for certain non-presumptive conditions involving TERA (toxic exposure risk activity). For such claims, VA is required to provide a disability examination and medical opinion when the Veteran submits a claim for compensation, has evidence of a disability, has evidence of participation in a TERA and such evidence is not sufficient to establish service connection for the disability. Here, it is conceded that the Veteran was exposed to herbicide agents as well as tetrachlorodibenzodioxin (TCDD). See January 2024 memorandum. Although OSA has not been associated with herbicide exposure, given that the Veteran's in-service exposure included herbicide agents and TCDD, the Veteran was provided a TERA examination in February 2024 to consider the combined effect of all toxic exposure risk activities. Cf. 38 U.S.C. § 1168. The examiner's opinion provided an adequate and thorough rationale and is detailed below. As such, the Board finds the provisions of the PACT Act have been complied with as outlined below. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d at 1376-77. When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1376-77. In rendering this decision, the Board has reviewed all evidence of record whether discussed in detail. See Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007) (holding the Board must only discuss the evidence which is relevant to the issues on appeal). A Veteran is entitled to the benefit of the doubt when the evidence is in approximate balance or "nearly equal," and does not require that the evidence be in exact equipoise. Evidence is in approximate balance when the evidence in favor of and opposing the veteran's claim is found to be almost exactly or nearly equal. Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021). Evidence of Record Turning to the relevant evidence, the Veteran's service treatment records are silent as to any complaints, treatment or diagnoses related to sleep-related issues. The Veteran testified during his Board hearing that during service he was given a private room because of "sleep issues," but he also testified that no one ever complained to him about it, and he was unaware of what these issues were. The Board acknowledges this testimony but finds the testimony at a minimum confusing as to how or why he would be given a private room for "sleep issues" in which no one noticed, mentioned, or complained. Indeed, he was not diagnosed with OSA until decades after service and did not complain of any such manifestations for many, many years after service. In particular, after service, the medical evidence does not reflect complaints of any sleep related complaints until November 2018, decades after service. Specifically, at that time, in a November 2018 VA treatment record, the Veteran reported he snored and woke up not breathing. Based on this report, the VA physician ordered a sleep study. The Veteran was diagnosed with OSA after a sleep study in February 2019. A VA examination was provided in August 2019 that confirmed his diagnosed OSA. The examiner opined that the Veteran's OSA was less likely than not proximately due to or the result of the Veteran's PTSD or DMII. The examiner stated that the most recent medical literature does not indicate that PTSD or DMII is a cause of OSA. The examiner acknowledged that while there have been past studies showing an association with PTSD and OSA in younger veterans, the examiner opined that this Veteran's OSA was not caused by PTSD as the Veteran has two major risk factors for OSA, old age and male gender which are the most likely causes of the Veteran's OSA. In support, the examiner stated that the Veteran had not sought treatment for PTSD related statements for six years prior to the onset of the Veteran's OSA. The The examiner was also asked whether the Veteran's sleep apnea was at least as likely as not aggravated beyond its natural progression by his service-connected PTSD and DMII. The August 2019 examiner opined that his OSA was not attributable to his service-connected PTSD or DMII because neither service-connected disability was severe enough to cause the Veteran's OSA to progress beyond the natural progression of the disease. Again, the Veteran's OSA was opined to be more likely caused by the Veteran's age and male gender. From a temporal standpoint, the examiner explained the Veteran's experiences that caused PTSD occurred in Korea in the 1970s whereas the Veteran's OSA symptoms did not begin until 2019, at the age of 71. The examiner further explained that DMII was well-controlled and is not a cause of progression of OSA beyond the natural course of the disease. The examiner concluded that the Veteran's OSA was progressing according to the natural progression of the disease with diagnosis at age 71. The Veteran testified before the Board in September 2022 where the Veteran explained, as noted above, that he was given a private room in the military for "sleep issues" although he did not explain how this was known. He also noted that he had an ex-wife and an ex-girlfriend who attended his 2019 VA examination and planned to explain her observations of how he would stop breathing at night and would wake up coughing, but that the examiner did not "want to hear it." Based on this testimony, the matter was remanded to allow for another examination to consider the lay statements and chronology of symptoms. In February 2024, the Veteran was provided a new VA examination, which also diagnosed OSA. The February 2024 examiner, after reviewing all the relevant evidence to include the lay reports from the Veteran, the relevant lay statements found in the file, the Board hearing transcripts, the Board remand, and the conceded TERA, rendered a negative nexus opinion. In particular, the examiner found the Veteran's OSA unlikely due to his military service, the TERA, or a service-connected disability noting that OSA was diagnosed 49 years after service and finding a lack of medical-based researched evidence to support either a causal or aggravation relationship between OSA and any of the Veteran's service-connected disabilities. Instead, the Veteran's OSA is "obstructive" sleep apnea, meaning that it occurs when throat muscles intermittently relax and block your airway during sleep causing snoring. Risk factors include excess weight, narrowed airways, hypertension, smoking, diabetes and genetic factors. Regarding PTSD, the examiner further found that OSA would not have been caused or aggravated by his PTSD as the medical literature does not support such a relationship between the two. Rather, it is more likely that the two conditions merely exist simultaneously. Further, the February 2024 VA examiner found it not likely that the TERA caused OSA 49 years later. After an additional remand, the Veteran was provided an August 2024 sleep study in conjunction with his claim. The diagnosed sleep apnea was again confirmed. In September 2024, the VA examiner once again rendered a negative nexus opinion finding it unlikely that the Veteran's OSA, diagnosed over two decades after service, was attributable to any incident of service (to include in-service TERA) or a service connected disability even when considering the Veteran's lay statements of snoring, stopped breathing in sleep, and day time fatigue since getting out of the service as described by his prior girlfriend. The examiner explained that while the lay statements were taken into consideration, there is no medical evidence that establish that the claimant was suffering from OSA for nearly 40 years and he had other significant risk factors such as obesity much later in life that lead to the conclusion that OSA developed many years after service and are attributable to factors wholly unrelated to service or a service-connected disability. Analysis There is no dispute the Veteran is diagnosed with OSA. The Veteran underwent two sleep studies and was diagnosed with OSA, and his diagnosis was also confirmed in the VA examinations of record. However, the Board finds the evidence persuasively weighs against finding the Veteran's OSA is related to service, to include exposure to herbicide agents, or is secondary to his service connected DMII and/or PTSD. Notably, the Veteran's service treatment records are silent for complaints of OSA or symptoms of OSA. The Veteran's VA treatment records are also silent for complaints of OSA or symptoms of OSA before 2018, when the Veteran was sent for a sleep study and diagnosed in February 2019. He was then prescribed a continuous positive airway pressure (CPAP) machine which he used. Thus, the medical evidence shows he did not report or complain of sleep issues or sleep apnea in service or after service until 2018. The Board considered the Veteran's lay statements concerning the continuity of his OSA during service and thereafter, including that he was provided a private room while in service and that a girlfriend witnessed his apneic episodes. However, neither the Veteran nor his girlfriend have shown they possess the requisite medical expertise or training to diagnose a condition such as OSA. Jandreau, 492 F.3d at 1376-77. While the Veteran is certainly competent to provide statements regarding observable symptoms such as fatigue and daytime somnolence, he is not competent to diagnose OSA in or after service. The time frame of when his girlfriend saw his episodes is also unclear as the Veteran did not provide an approximate date when she witnessed his episodes, and the girlfriend has not provided her own statement. In this regard, the Veteran reported in an August 2024 VA treatment record that he had a sleep study in 2019 and "[a]t that time his girlfriend noticed he stopped breathing during sleep for a prolonged time." (emphasis added). The Board finds more probative the Veteran's service treatment records and VA treatment records, which reported the Veteran's medical concerns at the time. Indeed, such records do not show the Veteran had complaints of OSA until 2018. Moreover, the VA medical opinions of record do not support the Veteran's OSA began in service or is related to service, to include exposure to herbicide agents and/or TCDD. The Board acknowledges that the August 2019 and February 2024 VA examinations were found inadequate for failure to adequately consider the Veteran's lay statements of record. However, merely because a medical opinion is inadequate to decide a claim does not mean that it without any probative weight. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) ("Furthermore, even if a medical opinion is inadequate to decide a claim, it does not necessarily follow that the opinion is entitled to absolutely no probative weight). The Board finds that when taken together with the newly obtained September 2024 VA medical opinion which directly addresses the Veteran's lay statements of record, the medical opinions of record are adequate to decide the claim. The Board provides the September 2024 VA medical opinion significant probative weight. The VA medical opinion expressly considered the Veteran's lay statements and contentions yet found the medical evidence did not support the Veteran's OSA began in service or was related to service. The examiner provided rationale in support of the opinion and referenced Mayo Clinic medical literature. The Board finds the opinion competent, credible, and probative. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The Board finds persuasive the September 2024 examiner's rationale that, even considering the Veteran's lay statements, the medical evidence did not support that the Veteran was suffering from fatigue, snoring, or stopping breathing during or after service until years after service. After referencing medical literature from the Mayo Clinic, the examiner noted the prevailing risk factor for OSA was obesity. The examiner concluded there was no evidence medical evidence to support chronicity or a nexus after service. Additionally, the Board finds probative the February 2024 examiner's opinion that the Veteran's OSA was not related to his exposure to herbicide agents in service given both that the Veteran was not diagnosed with OSA until 49 years after service and that there was a lack of evidence-based research to support a causal relationship of exposures to herbicide agents and OSA. The February 2024 opinion also expressly indicates that the examiner considered the Veteran's total potential exposure through all applicable military deployments of the Veteran and the synergistic, combined effect of all toxic exposure risk activities of the Veteran. Again, there is no medical opinion which supports the Veteran's contention that his OSA was continuous since service or otherwise related to service. Accordingly, the Board finds the evidence is persuasively against finding that his OSA began in service or is otherwise related to service. The Board also finds the probative evidence of record weighs persuasively against finding his OSA is related to his service connected DMII and / or PTSD. Initially, there is no dispute the Veteran is service connected for DMII and PTSD. In this regard, there have been several opinions from VA examiners addressing the nexus between OSA and his service-connected disabilities. As previously noted, an opinion, although inadequate, might still have some probative weight. Monzingo, 26 Vet. App. at 107. While the February 2024 medical opinion was found inadequate for failing to consider the Veteran's lay statements in connection with the Veteran's direct theory of service connection, as explained below, the Board nonetheless finds the February 2024 medical opinion adequate to decide the Veteran's secondary service connection claim when taken together with the September 2024 and August 2019 medical opinions of record. See April 2024 BVA Decision. As explained above, the February 2024 examiner opined the Veteran's OSA was not related to his service-connected disabilities, to include DMII or PTSD. The examiner, referencing literature from the Mayo Clinic, found that although OSA had been linked to the incidence of DMII, there was a lack of evidence-based research to support a causal relationship between OSA and DMII, peripheral neuropathy, and diabetic neuropathy. In regard to aggravation, the examiner found the Veteran's records indicated a normal progression of the peripheral neuropathy in the setting of longstanding history of DMII, and there was lack of medical evidence in records or literature that support OSA was aggravated by his peripheral neuropathy. The examiner also found there was a lack of evidenced based research to support a causal relationship between PTSD and OSA. The examiner noted there were many peer-reviewed journal articles studying the association between the two disabilities and the consensus was that an association, but not causation, existed. It was often that the two disabilities existed simultaneously or were comorbidities. One specific study referenced by the examiner did not conclude PTSD caused OSA. Another study referenced by the examiner concluded that it was unclear if higher incidents of PTSD were related to higher rates of OSA. The examiner also opined there was no evidence in his records to support aggravation of OSA due to his PTSD. The Board finds the rationale within the February 2024 VA medical opinions are entitled to significant probative weight as it pertains to the Veteran's secondary service connection claims. The examiner noted review of the medical records, service treatment records, and acknowledged obtaining a lay report from the Veteran. In addition to the examiner's own expertise, the medical opinion incorporated studies and other literature to support its rationale. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). Moreover, the September 2024 VA medical opinion expressly considered the Veteran's lay statements, finding that such statements were contradictory to the objective evidence, which did not show that the Veteran actually suffered from fatigue, snoring, or stopping breathing in his sleep during or after service until 30 plus years later. In other words, the claimant's statements and girlfriend's statements of chronicity were not supported by the medical evidence. The Board recognizes the February 2024 examiner specifically opined his peripheral neuropathy did not aggravate his OSA, whereas the opinion was specifically to address DMII. However, the Board finds that the erroneous use of peripheral neuropathy as opposed to DMII is not harmful to the probative weight of the opinion. The examiner, while opining peripheral neuropathy did not aggravate his OSA, noted the disabilities at issue in the opinion was DMII with erectile dysfunction, peripheral neuropathy, or diabetic neuropathy. The Board therefore construes the examiners mere use of peripheral neuropathy as the disability under the aggravation prong addressed DMII and the other disabilities associated with DMII. Additionally, the Board finds the August 2019 examiner's opinion is entitled to some probative weight as the opinion indicated review of the claims file and referenced medical literature that supported the examiner's opinion. The August 2019 examiner similarly found that the most recent literature did not indicate that DMII or PTSD was a cause of OSA and that the Veteran's older age at the onset of his OSA and his male gender were major risk factors and were most likely the cause of his OSA. The examiner also opined the Veteran's OSA was not aggravated by his DMII or PTSD as the Veteran's DMII and PTSD were not severe enough (or in the case of DMII, uncontrolled enough) to cause his OSA. Based on the forgoing, the Board finds that the probative evidence of record does not support the Veteran's contention that his OSA began and continued since service or is otherwise related to service. The Board also finds the evidence persuasively weighs against finding the Veteran's DMII and/or PTSD caused or aggravated his OSA. Accordingly, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection for OSA is not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Knopp, Derek A. 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.