SLEEP APNEA SYNDROMES (OBSTRUCTIVE CENTRAL MIXED)

Summary

The Veteran, an Army Veteran who served from May 1989 to July 1991, appeals the denial of service connection for obstructive sleep apnea (OSA), claiming it is secondary to his service-connected posttraumatic stress disorder (PTSD), left ankle, lumbar spine, right hip, left hip, left knee, and right knee disabilities. The Veteran submitted a private sleep evaluation from May 2022, which opined that his OSA was secondary to his service-connected left ankle disability, citing weight gain due to inactivity and NSAID use for chronic pain as contributing factors. A subsequent VA examination in June 2022 found the OSA less likely than not related to the ankle disability, attributing it to obesity and dietary habits. However, a March 2023 private medical opinion from Z.M., M.D., found it at least as likely as not that the OSA was caused or aggravated by the Veteran's multiple service-connected disabilities, citing weight gain from inactivity, sedentary lifestyle, and NSAID use for chronic pain as predisposing factors. The Board found the private opinions more probative due to their thoroughness, detailed explanations of the pathophysiology linking NSAID use and weight gain to OSA, and citation of supporting medical research, contrasting this with the VA examiner's lack of similar support. The Board concluded that the evidence supports secondary service connection for OSA. Service connection for OSA secondary to the Veteran's PTSD, left ankle, lumbar spine, right hip, left hip, left knee, and right knee disabilities is granted.

Rationale

Private opinions found OSA secondary to service-connected disabilities; Cited weight gain from inactivity and NSAID use as contributing factors; Private opinions were more probative than VA opinion due to detailed explanations and research

Full Decision Text

Citation Nr: A25015945
Decision Date: 02/21/25	Archive Date: 02/21/25

DOCKET NO. 231212-399505
DATE: February 21, 2025

ORDER

The appeal as to the claim of entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected disabilities is granted.

FINDING OF FACT

The Veteran's current OSA is proximately due to or aggravated beyond its natural progression bt his service-connected posttraumatic stress disorder, left ankle, lumbar spine, right hip, left hip, left knee, and right knee disabilities. 

CONCLUSION OF LAW

The criteria for establishing entitlement to service connection for OSA have been met.  38 U.S.C. §§ 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2021).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active service in the United States Army from May 1989 to July 1991.  His service was under honorable conditions. 

The matter is on appeal from a December 2022 rating decision issued by a VA Regional Office (RO). 

The Veteran chose to participate in VA's test program "RAMP", the Rapid Appeals Modernization Program.  This decision has been written consistent with the new AMA framework.  The Veteran opted into RAMP on December 12, 2023, and selected the Direct Review Lane.  As explained on the RAMP Opt-In Election Form, the review is based on evidence submitted to VA as of the date of the election, and the Veteran may not submit additional evidence. Thereafter, in subsequent correspondence, the Board accepted the Veteran's appeal and placed it on the Direct Review docket.  Under Direct Review, the Board will consider all evidence of record up to December 12, 2023.  The Board has not considered any evidence received or submitted after the December 2023 RAMP Opt-In Election. 

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).  

Service Connection - Legal Criteria

Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303 (d).  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). 

A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected.  When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.  38 C.F.R. § 3.310(a) (2021).  This includes any increase in severity of a nonservice-connected disease that is proximately due to or the result of a service-connected disability as set forth in 38 C.F.R. § 3.310(b).  See also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).  A claimant is also entitled to service connection on a secondary basis when it is shown that a service-connected disability aggravates a nonservice-connected disability.  38 C.F.R. § 3.310; Allen, 7 Vet. App. at 439.  

Also, 38 U.S.C. § 1154 (a) requires that VA give 'due consideration' to 'all pertinent
 includes any increase in severity of a nonservice-connected disease that is proximately due to or the result of a service-connected disability as set forth in 38 C.F.R. § 3.310(b).  See also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).  A claimant is also entitled to service connection on a secondary basis when it is shown that a service-connected disability aggravates a nonservice-connected disability.  38 C.F.R. § 3.310; Allen, 7 Vet. App. at 439.  

Also, 38 U.S.C. § 1154 (a) requires that VA give 'due consideration' to 'all pertinent medical and lay evidence' in evaluating a claim for disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  Specifically, '[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.' Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2021); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 

Entitlement to service connection for OSA, to include as secondary to service-connected disabilities. 

The Veteran contends that his current OSA disorder is secondary to his service-connected posttraumatic stress disorder, left ankle, lumbar spine, right hip, left hip, left knee, and right knee disabilities.

Post-service records include a May 2022 private sleep evaluation, during which OSA is assessed. The examiner opined that the Veteran's current OSA is secondary to his service-connected left ankle disability.  In providing the opinion, the examiner noted that the Veteran gained 27 pounds due to his inactivity as a result of his service-connected left ankle disability.  The examiner noted that obesity and weight gain is the number one risk factor of developing OSA.  The examiner further noted that studies show a relationship between chronic pain and chronic sleep impairment.  Moreover, the examiner noted that the Veteran currently takes Ibuprofen for his service-connected left ankle.  The examiner explained that studies show that Nonsteroidal Anti-Inflammatory (NSAID) medications cause fluid retention, which leads to postural fluid shifts at night, increasing tissue and pressure and causing the narrowing of the upper airway, predisposing to OSA.  In this regard, the examiner explained that the Veteran subsequently developed persistent daytime hypersomnolence, snoring, apneic episodes, trouble falling/staying asleep, insomnia, fatigue, headaches, and poor concentration/difficulty completing tasks.  

The Veteran underwent a VA examination in June 2022, during which OSA was assessed.  Upon examination, the examiner found that the Veteran's current OSA was less likely than not due to the Veteran's service-connected left ankle disability.  In providing the opinion, the examiner indicated that OSA is a mechanical condition where the muscle of the soft palate relax, causing an obstruction of the airway.  The examiner indicated that there is no known medical explanation to explain how a "lower back/nerve condition" could directly cause OSA.  The examiner concluded that it is more likely than not that obesity caused the Veteran's current OSA.  The examiner indicated that the Veteran is not in receipt of service connection for obesity.  The examiner further indicated that while the Veteran's left ankle disability may limit his exercise options, 90 percent of obesity is directly related to dietary habits, and therefore, it is less likely than not that his left ankle disability caused his obesity.

In a March 2023 opinion, Z.M., M.D., opined that it is at least as likely as not that the Veteran's current OSA is
.  The examiner indicated that there is no known medical explanation to explain how a "lower back/nerve condition" could directly cause OSA.  The examiner concluded that it is more likely than not that obesity caused the Veteran's current OSA.  The examiner indicated that the Veteran is not in receipt of service connection for obesity.  The examiner further indicated that while the Veteran's left ankle disability may limit his exercise options, 90 percent of obesity is directly related to dietary habits, and therefore, it is less likely than not that his left ankle disability caused his obesity.

In a March 2023 opinion, Z.M., M.D., opined that it is at least as likely as not that the Veteran's current OSA is caused and/or aggravated by his service-connected posttraumatic stress disorder, left ankle, right hip, left hip, lumbar spine, right knee, and left knee disabilities.  In providing the opinion, the examiner cited to several studies and articles, noting that the risk of developing OSA as a result of PTSD is related to weight gain and obesity, and is well documented that PTSD predisposes an individual to weight gain.  The examiner further noted that the Veteran's left ankle, right hip, left hip, lumbar spine, right knee, and left knee disabilities caused chronic pain, and as a result, the Veteran participates less in physical activities and has led a more sedentary lifestyle, which is a contributing factor to his weight gain.  The examiner further noted that to treat these painful musculoskeletal conditions, the Veteran has been prescribed or has taken NSAID's, to include Ibuprofen.  The examiner explained that NSAID's promote sodium and water retention, and research shows that fluid retention, such as that caused by chronic NSAID use, is a cause for OSA.  The examiner explained that some of this fluid may accumulate in the neck, increasing tissue pressure and causing the upper airway ot narrow, predisposing to OSA.  The examiner concluded that the Veteran's medication treatment for his chronic pain includes NSAID medication that has the potential for fluid retention and postural fluid shift at night, which, at the very least, aggravated his OSA. 

The Board finds that the evidence of record supports a grant of service connection for OSA secondary to the Veteran's service-connected posttraumatic stress disorder, left ankle, lumbar spine, right hip, left hip, left knee, and right knee disabilities.  The clinical evidence establishes that the Veteran has a current diagnosis of OSA in May 2022 and June 2022.  The May 2022 and March 2023 private examiners found that the Veteran's current OSA was caused by his service -connected posttraumatic stress disorder, left ankle, right hip, left hip, lumbar spine, right knee, and left knee disabilities.  In support of their opinions, the examiners cited to studies and articles, as well as the medical record, noting that the Veteran gained 27 pounds due to his inactivity as a result of his service-connected disabilities.  The examiners further noted that obesity and weight gain is the number one risk factor of developing OSA.  The examiners' stated that the Veteran's service-connected left ankle, right hip, left hip, lumbar spine, right knee, and left knee disabilities caused chronic pain, and as a result, the Veteran participated less in physical activities and has led a more sedentary lifestyle, which is a contributing factor to his weight gain.  The examiner further noted that to treat these painful musculoskeletal conditions, the Veteran has been prescribed or has taken NSAID's, to include Ibuprofen.  The examiner explained that NSAID's promote sodium and water retention, and research shows that fluid retention, such as that caused by chronic NSAID use, is a cause for OSA.  The examiner indicated that some of this fluid may accumulate in the neck, increasing tissue pressure and causing the upper airway ot narrow, predisposing the Veteran to OSA.  Moreover, the Board finds the Veteran's statements concerning his ongoing symptoms of difficulty falling asleep, staying asleep, and gasping for air, to be competent and credible, and the post-service records corroborate his contentions.  

The Board acknowledges that the June 2022 VA opinion is presented as against the Veteran's claim.  In this regard, the Board finds the aforementioned private opinions significantly more probative, because they are based on a thorough review of available medical and lay history and provide an explanation that contains clear conclusions and supporting data.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  Specifically, the May 2022 and March 2023 private examiners provided an extensive review and history of the Veteran's symptoms.  The examiners clearly explained the pathophysiology of O
 air, to be competent and credible, and the post-service records corroborate his contentions.  

The Board acknowledges that the June 2022 VA opinion is presented as against the Veteran's claim.  In this regard, the Board finds the aforementioned private opinions significantly more probative, because they are based on a thorough review of available medical and lay history and provide an explanation that contains clear conclusions and supporting data.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  Specifically, the May 2022 and March 2023 private examiners provided an extensive review and history of the Veteran's symptoms.  The examiners clearly explained the pathophysiology of OSA related to obesity and cited extensive supporting medical research.  Moreover, the examiners' explained that NSAID's (prescribed for the Veteran's service-connected musculoskeletal disabilities) promote sodium and water retention, and research shows that fluid retention, such as that caused by chronic NSAID use, is a cause for OSA.  Comparatively, the VA examiner cited to no such research, and failed to address the existence of a link between the Veteran's NSAID use for service-connected disabilities and the development of OSA.  

The Board concludes that the evidence of record supports secondary service connection for OSA.  Accordingly, entitlement to service connection for OSA, is warranted on a secondary basis.

 

 

B. MULLINS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Sara Schinnerer, 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.