SLEEP APNEA SYNDROMES (OBSTRUCTIVE CENTRAL MIXED)

B.T. KNOPE · 2017 · Case ID: 1726897

DENIED

Summary

The veteran, who served in the U.S. Marine Corps from September 1966 to June 1971, appeals the denial of service connection for obstructive sleep apnea. The veteran claimed the condition was secondary to his service-connected PTSD, peripheral neuropathy, diabetes mellitus, hearing loss, or tinnitus. The Board reviewed the evidence, including service treatment records, multiple VA examinations, and articles submitted by the veteran's representative. Service treatment records showed no symptoms of sleep apnea during service, and the veteran admitted in a 2016 exam that it did not manifest in service. The diagnosis of sleep apnea occurred in 2004, with the first mention of respiratory issues since service appearing in 2003, creating a significant gap and lack of continuity. The Board found no medical nexus linking the sleep apnea to PTSD, peripheral neuropathy, diabetes mellitus, hearing loss, or tinnitus. VA examiners opined that PTSD does not etiologically cause sleep apnea, and while obesity is a risk factor, it could not be attributed to PTSD. Furthermore, the sleep apnea diagnosis predated the diagnoses of peripheral neuropathy and diabetes mellitus, and no medical evidence linked hearing loss or tinnitus to sleep apnea. The Board gave greater weight to the VA examiners' opinions over general research articles, concluding the claim was not warranted.

Rationale

No evidence of sleep apnea in service or at separation.; Significant gap between separation and diagnosis without continuity of symptoms.; No medical nexus found between sleep apnea and PTSD, peripheral neuropathy, diabetes mellitus, hearing loss, or tinnitus.; VA examiners opined PTSD does not cause sleep apnea; obesity, a risk factor, not attributable to PTSD.; Sleep apnea diagnosis predated peripheral neuropathy and diabetes mellitus diagnoses.

Service Branch

MARINE CORPS

Special Benefit

NO SPECIAL BENEFIT

Docket No.

10-36 435A

Full Decision Text

Citation Nr: 1726897
Decision Date: 07/12/17 Archive Date: 07/20/17

DOCKET NO. 10-36 435A ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee

THE ISSUE

Entitlement to service connection for obstructive sleep apnea, to include as secondary to service connected post-traumatic stress disorder (PTSD), peripheral neuropathy, diabetes mellitus, hearing loss, or tinnitus.

REPRESENTATION

Appellant represented by: The American Legion

ATTORNEY FOR THE BOARD

Z. Maskatia, Associate Counsel

INTRODUCTION

The Veteran had active service in the United States Marine Corps from September 1966 to June 1971. This matter comes before the Board of Veteran's Appeals (Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.

FINDING OF FACT

The Veteran's obstructive sleep apnea is not shown in service, related to his time in service, or caused by or aggravated by a service connected disability.

CONCLUSION OF LAW

The criteria for entitlement to service connection for obstructive sleep apnea, to include as secondary to a service connected disability, have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5103(a), 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.309, 3.310 (2016).

REASONS AND BASES FOR FINDING AND CONCLUSION

VA's Duty to Notify and Assist

VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C.A. §§ 5103, 5103A (West 2014) and 38 C.F.R. § 3.159 (2016). Here, the duty to notify was satisfied by way of a letter sent in February 2010.

VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished and all available evidence pertaining to the matter decided herein has been obtained.

The Board notes that this appeal was remanded most recently in December 2016 in order to consider and address three articles submitted as exhibits by the Veteran's representative in furtherance of the Veteran's claim. All available records have been obtained and attached to the claims file. Therefore, VA has met its duty to assist in this respect.

VA provided a relevant and adequate examination in January 2017 to supplement those administered in March 2010, October 2015, and May 2016. The examiner reviewed the accurate history, considered lay statements, and provided clinical findings and diagnoses. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

Service Connection

The Veteran is seeking service connection for obstructive sleep apnea, secondary to PTSD. Specifically, the Veteran asserts that he developed obstructive sleep apnea as a result of the obesity caused by his service connected PTSD, or in the alternative, his service connected peripheral neuropathy, diabetes mellitus, hearing loss, or tinnitus.

Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995).

Under 38 C.F.R. § 3.303 (b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a) (2016). See Walker v. Shinse
(3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995).

Under 38 C.F.R. § 3.303 (b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a) (2016). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As obstructive sleep apnea is not covered in § 3.309(a), though, service connection via the demonstration of continuity of symptomatology is not for application.

Service connection may be also established on a secondary basis for a disability that is proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310(a) (2016). 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. 38 C.F.R. § 3.310 (a) (2016); Allen v. Brown, 7 Vet. App. 439 (1995).

In this case, after reviewing all evidence currently of record, the Board determines that service connection for obstructive sleep apnea is not warranted because the evidence does not show that the Veteran's obstructive sleep apnea is related to or had its onset during his service, nor is it related to his PTSD, or his service connected peripheral neuropathy, diabetes mellitus, hearing loss, or tinnitus.

First, the Veteran is not precluded from establishing service connection for his obstructive sleep apnea with proof of actual direct causation as due to active duty service. However, service connection is not warranted on this basis. Specifically, the Veteran's service treatment records show no treatment for or symptoms of sleep apnea in service or at his separation exam in June 1971. In fact, in his May 2016 VA exam, the Veteran readily admitted that he did not show obstructive sleep apnea in service. The only mention of the Veteran's respiratory system in his service treatment records is an affirmative response to an ear nose throat trouble inquiry in a service treatment examination dated March 1967.

The Veteran was diagnosed with obstructive sleep apnea in 2004. However, the first indication of any respiratory disability since separation in 1971 was May 2003, which mentioned that the Veteran was using a CPAP for sleep apnea. There is no record of the Veteran receiving treatment for obstructive sleep apnea prior to this date. During the thirty-two year gap between his separation and his diagnosis, the Veteran endorsed no signs or symptoms of a respiratory disability. Therefore, continuity is not shown.

The Board has considered the assertions made by the Veteran relating to his obstructive sleep apnea. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether a statement is credible, the Board may consider factors such as facial plausibility, bias, self-interest, and consistency with other evidence of record. Caluza v. Brown, 7 Vet. App. at 511; see also Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); cf. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).

The Veteran asserts in a February 2010 statement that he has suffered from sleep apnea since he left service, but that he did not realize it could be connected to PTSD or another service-connected disorder until relatively recently. It is even plausible that the Veteran did not seek treatment because he was not aware of obstructive sleep apnea as a diagnosable disorder. As such, his credibility is not at issue.

However, service connection must be denied because there is no medical nexus between the Veteran's active duty and current diagnosis. In an October 2015 examination, the examiner stated that obstructive sleep apnea is a medical condition which is caused by variations in craniofacial anatomy, and by the repetitive collapse of the upper pharyngeal airways in the supine position. PTSD, on the other hand, is a mental health condition with a number of sleep disturbances associated with it, but that does not have any etiologic relationship with obstructive sleep apnea. The matter was remanded to consider several articles submitted by the Veteran suggesting a causal connection between PTSD and sleep apnea, and to examine whether the Veteran's sleep apnea could be secondary to other service connected disabilities. In a January 2017 examination, a new examiner opined that there is no convincing evidence that PTSD causes sleep apnea. Since sleep apnea is a mechanical obstruction of the airway, the examiner found it difficult to visualize pathophysiologically how PTSD can cause sleep apnea. Further, while obesity is the strongest risk factor for sleep apnea, the examiner pointed out that hypothyroidism and arthritis, both of which are referred to in the Veteran's medical records, can contribute to weight gain. Thus, since the Veteran's obesity cannot be attributed to PTSD, neither can his sleep apnea.

Likewise, the VA examiner stated that the Veteran's sleep apnea was not aggravated by his PTSD. Obstructive sleep apnea is a medical condition caused by physical factors such as variations in oropharyngeal pathways with obstruction to airflow in the supine position, resulting in pauses in breathing. The risk factors for this condition include facial structure, obesity, gender, and advancing age. According to the examiner, since there is no known medical literature that can establish an etiologic link between PTSD and sleep apnea, there is also no evidence that PTSD can aggravate sleep apnea. In addition to there being no known causal connection, the examiner explained that the Veteran has shown consistent symptoms of sleep apnea, and therefore there was no evidence of aggravation.

As for whether the Veteran's sleep apnea was caused or aggravated by his service connected diabetes mellitus, peripheral neuropathy, hearing loss, or tinnitus, the January 2017 VA examiner noted the peripheral neuropathy exam in which the Veteran complained of numbness and tingling in his feet from 2007 to 2008. However, his obstructive sleep apnea was diagnosed in 2004, prior to his diagnoses of peripheral neuropathy or diabetes mellitus, indicating a low likelihood that they caused his obstructive sleep apnea. He also stated that no established medical evidence suggests that hearing loss or tinnitus can cause obstructive sleep apnea. As such, the Veteran's claim fails for this reason as well.

The Board finds that this examination was adequate for evaluation purposes. The examiner examined the Veteran using the Acceptable Clinical Evidence (ACE) process, and reviewed his E-folder and CPRS, and there is no indication that the examiner was not fully aware of the Veteran's past or that she misstated any material fact. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (Vet. App. 2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Additionally, the Veteran has submitted no clinical evidence rebutting the VA examiner's latest opinion.

The Board has noted that the Veteran's representative submitted a statement in November 2016 that lists a number of internet sites containing articles regarding the potential relationship between psychiatric symptoms and sleep apnea. Such studies are probative, and do support the Veteran's appeal. However, the Board finds that these studies, which are general in nature, are outweighed by the opinions provided by VA examiners. Specifically, unlike these studies, the VA examiners had the ability to interview the Veteran, review his medical records, and make specific conclusions based on the Veteran's specific history. Moreover, a VA examination in January 2017 was specifically obtained to address these research articles. Therefore, greater weight must be placed on the VA examiners' opinions.

In arriving at this conclusion, the Board notes the Veteran's assertion that his PTSD caused his obesity, and that
regarding the potential relationship between psychiatric symptoms and sleep apnea. Such studies are probative, and do support the Veteran's appeal. However, the Board finds that these studies, which are general in nature, are outweighed by the opinions provided by VA examiners. Specifically, unlike these studies, the VA examiners had the ability to interview the Veteran, review his medical records, and make specific conclusions based on the Veteran's specific history. Moreover, a VA examination in January 2017 was specifically obtained to address these research articles. Therefore, greater weight must be placed on the VA examiners' opinions.

In arriving at this conclusion, the Board notes the Veteran's assertion that his PTSD caused his obesity, and that his obesity caused his sleep apnea. The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

In this case, however, the Veteran is not competent to testify regarding the etiology of obstructive sleep apnea. See Jandreau, 492 F.3d 1372 at 1377, n.4. Because such disorders are not diagnosed by unique and readily identifiable features, they do not have a simple identification that a layperson is competent to make. Specifically, the Veteran is not qualified to determine that his PTSD or other service connected conditions at least as likely as not caused his obstructive sleep apnea. As an initial matter, the articles submitted by the Veteran in furtherance of his claim, do not suggest a causative link between obstructive sleep apnea and PTSD, but rather a factual correlation. Such a correlation is not sufficient to warrant secondary service connection. Further, qualified medical examiners opined that the Veteran's obesity was caused by many factors, including his hypothyroidism and his arthritis, not just the after-effects of his PTSD. According to his January 2017 VA examination, his morbid obesity onset in 2002, whereas his sleep apnea was diagnosed two years later, in 2004. Further, the examiner also opined that PTSD could cause a number of sleep problems, including insomnia, but not including sleep apnea. Therefore, the lay statements of belief that the Veteran's sleep apnea is related to his time in service, especially his service connected PTSD or other disabilities, are found to lack competency.

Unfortunately, based on the evidence of record, the Veteran's claim must be denied

ORDER

____________________________________________
B.T. KNOPE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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