SLEEP APNEA SYNDROMES (OBSTRUCTIVE CENTRAL MIXED)

Summary

The veteran, who served from January 1976 to January 1982 and again from October 2008 to October 2009, appeals the denial of service connection for obstructive sleep apnea (OSA). The veteran claimed OSA was due to service, specifically citing stress during Hurricane Katrina in Mississippi in 2005, service in Iraq, and as secondary to his service-connected PTSD. The Board noted favorable findings that the veteran was diagnosed with OSA in October 2020 and is service-connected for PTSD. However, the Board found the evidence persuasively against the claim. Service treatment records did not show complaints, findings, or treatment for OSA. A VA examination in August 2021 opined that OSA is less likely than not caused by PTSD or its medications, citing a lack of conclusive studies. The Board agreed with this opinion, noting that medical literature does not support PTSD or its medications causing or accelerating OSA. The Board also found the veteran's lay contentions regarding Hurricane Katrina service and Iraq service insufficient to establish in-service incurrence or continuous symptoms, as the OSA diagnosis occurred in 2020. The Board concluded that the veteran's lay contentions on causation were conclusory and did not warrant further development. The Board also noted that the PACT Act's provisions for toxic exposure risk activity (TERA) exams did not apply retroactively to the pre-PACT Act rating decision. Consequently, service connection for OSA was denied.

Rationale

VA opinion found OSA less likely than not caused by PTSD or medications.; Medical literature does not support PTSD or medications causing/accelerating OSA.; Veteran's lay contentions regarding Hurricane Katrina and Iraq service were insufficient to establish in-service incurrence or continuous symptoms.

Full Decision Text

Citation Nr: A24064685
Decision Date: 10/09/24	Archive Date: 10/09/24

DOCKET NO. 220303-224591
DATE: October 9, 2024

ORDER

Entitlement to service connection for obstructive sleep apnea, to include as secondary to the service-connected posttraumatic stress disorder (PTSD), is denied. 

FINDING OF FACT

Obstructive sleep apnea did not manifest during service, is not etiologically related to service, and is not secondary to the service-connected PTSD.  

CONCLUSION OF LAW

Obstructive sleep apnea did not manifest during service and was not caused or aggravated by a service-connected disability.  38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.  

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active service to include the periods from January 1976 to January 1982 and from October 2008 to October 2009.  

The rating decision on appeal was issued on August 5, 2021, with a notice letter dated on August 9, 2021.  Therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.   Although a May 2021 rating decision was indicated to be the rating decision appeal, the August 2021 rating decision is the rating decision on appeal for the reasons discussed below.  

In a May 2021 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for obstructive sleep apnea.  Subsequently that same month the Veteran filed a Higher-Level Review claim on VA Form 20-0996 regarding the denial of service connection for obstructive sleep apnea.  In a July 2021 rating decision, the AOJ determined that a duty to assist error was identified during the Higher-Level Review and the issue would be developed and a medical opinion would be sought.  The Veteran's claim was assigned to the Supplemental Review Lane for additional development.  In the August 2021 rating decision, the AOJ denied service connection for obstructive sleep apnea. 

The Veteran timely appealed the August 2021 rating decision in June 2022 and requested direct review of the evidence considered by the AOJ.  Although the Veteran indicated that he was appealing the rating decision dated on August 6, 2021, the procedural history shows that he was appealing the rating decision dated on August 5, 2021.  Consequently, the Board may consider evidence submitted through the August 2021 rating action.  If evidence was added to the record during an ineligible period identified above, the Board has not considered that evidence.  If the Veteran wishes to have VA consider any evidence that was not considered, a supplemental claim should be submitted identifying such evidence.

In the May 2021 rating decision, July 2021 Decision Review Officer Decision, and August 2021 rating decision, the AOJ made the following favorable finding: the Veteran was diagnosed with obstructive sleep apnea on October 1, 2020, via sleep study.  In the August 2021 rating decision, the AOJ also made the following favorable finding: the Veteran is service connected for the primary service-connected disability, PTSD, and on VA examination in August 2021 the Veteran was diagnosed with obstructive sleep apnea.  The Board is bound by these favorable findings.  38 C.F.R. § 3.104(c).

Entitlement to service connection for obstructive sleep apnea, to include as secondary to the service-connected PTSD.  

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303.  This may be accomplished by affirmatively showing inception or aggravation during service.  38 C.F.R. § 3.303(a).  Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service.  38 C.F.R. § 3.303(d).  

Service connection may also be granted on a secondary basis for a disability which was caused or aggravated by a service-connected disability.  38 C.F.R. § 3.310.  

In the February 2021 claim, the Veteran contended that his sleep apnea is due to service, to include his service in Biloxi, Mississippi during Hurricaine Katrina in 2005.  He explained that for almost 28 days he had almost no
.R. § 3.303(a).  Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service.  38 C.F.R. § 3.303(d).  

Service connection may also be granted on a secondary basis for a disability which was caused or aggravated by a service-connected disability.  38 C.F.R. § 3.310.  

In the February 2021 claim, the Veteran contended that his sleep apnea is due to service, to include his service in Biloxi, Mississippi during Hurricaine Katrina in 2005.  He explained that for almost 28 days he had almost no sleep and extreme stress.  A Higher-Level Review return in May 2021 shows that the Veteran contended that his sleep apnea was caused or aggravated by his service-connected PTSD or its medications and thus an opinion on this matter needed to be obtained.  A Higher-Level Review Informal Conference in May 2021 shows that the Veteran contended that he did not have sleep apnea until service and thought it was due to his service in Iraq.  He also contended that his sleep apnea was secondary to his service-connected PTSD.  

Service treatment records do not show complaints, findings or treatment for sleep apnea.  

VA treatment records in October 2020 show that obstructive sleep apnea was found on a September 2020 sleep study.

In an August 2021 VA opinion, prior to the August 2021 rating decision on appeal, the examiner opined that obstructive sleep apnea is less likely than not caused by the service-connected PTSD based on the rationale that no good current study concludes that obstructive sleep apnea is caused by PTSD or by PTSD medications.  The examiner also concluded that it was not at least as likely as not that obstructive sleep apnea, which is an anatomic disorder where the back of the throat occludes the airway when sleeping, was aggravated by PTSD or by PTSD medications.  

The Board notes that in a recent case, Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. March 2023), the U.S. Court of Appeals for the Federal Circuit held that 38 C.F.R. § 3.310 (b) is invalid as it is inconsistent with 38 U.S.C. § 1110, and was therefore unlawful to the extent that VA applied it to reject the theory of compensation based on aggravation through impact on modalities of treatment.  The Federal Circuit effectively held that § 1110 plainly requires compensation when a service-connected disease or injury is a "but-for" cause of a present-day disability, and that this applies to the natural progression of a disorder not caused by a service-connected injury or disease.  Although the August 2021 VA examiner on the Disability Benefits Questionnaire (DBQ) medical opinion template checked the box indicating that there was no aggravation beyond natural progression, the Board has focused on the examiner's written opinion to ensure that the opinion is in compliance with Spicer.  The August 2021 VA opinion shows that based on authoritative medical literature PTSD and its medications do not cause or accelerate the development of obstructive sleep apnea.  Therefore, the August 2021 VA opinion shows that the service-connected PTSD was not a "but-for" cause of the Veteran's obstructive sleep apnea and does not show that obstructive sleep apnea would have been less severe were it not for the service-connected PTSD.  Thus, the August 2021 VA opinion shows that the service-connected PTSD did not cause or aggravate obstructive sleep apnea.  Medical reports must be read as a whole and in the context of the evidence of record.  Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012).  

As a lay person, the Veteran is competent to report symptoms pertaining to his sleep apnea.  However, in the instant case, the Veteran is relating sleep apnea to his service-connected PTSD.  Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the etiology and diagnosis of obstructive sleep apnea, falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007).  The Veteran's obstructive sleep apnea is not the type of disorder that is readily amenable to mere lay diagnosis or probative comment regarding its etiology.  See Davidson v. Shinseki, 581 F.3d 
 competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the etiology and diagnosis of obstructive sleep apnea, falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007).  The Veteran's obstructive sleep apnea is not the type of disorder that is readily amenable to mere lay diagnosis or probative comment regarding its etiology.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation.  Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating such disorder.

As discussed above, the Veteran has contended that his obstructive sleep apnea also is related to service in Biloxi, Mississippi during Hurricaine Karina in 2005 and to his service in Iraq.  Service personnel records dated in December 2005 show that the Veteran during his service with the National Guard participated in the clean-up operations during Hurricane Katrina.  The Veteran's DD 214 Form shows that he had service in Iraq.  However, the evidence of record does not establish an in-service incurrence or continuous symptoms since service.  The Veteran was not diagnosed with obstructive sleep apnea until September 2020 and his statement that it is due to his service during Hurricane Katrina or in Iraq is conclusory.  Thus, further development on this matter, to include obtaining a VA opinion is not warranted.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010).  

The Board notes further, that on August 10, 2022, the President signed into law The Sergeant First Class Health Robinson Honoring our Promise to Address Comprehensive Toxics Act (PACT Act).  Section 303 of this law provides that, if a Veteran submits a claim for service connection with evidence of disability and evidence of participation in a toxic exposure risk activity (TERA), then VA shall obtain a medical opinion as to whether it is at least as likely as not that there is a nexus between the disability and the toxic exposure risk activity.  38U.S.C. §1168.  In this case, because the rating decision was issued prior to August 10, 2022, there was no duty to assist error because the duty for a TERA exam did not exist at that time, and it is not retroactive.  38 U.S.C. § 5103A (e), (f); 38 C.F.R. § 20.802(a).  

?

Thus, for the above reasons the evidence is persuasively against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim of service connection for obstructive sleep apnea, to include as secondary to the service-connected PTSD, must be denied.  38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

 

 

Thomas H. O'Shay

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Mac, 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.