SLEEP APNEA SYNDROMES (OBSTRUCTIVE CENTRAL MIXED)

Summary

The Veteran, who served in the United States Army from November 1980 to November 1983 and in the United States Navy from July 1984 to May 2001, appeals the denial of service connection for sleep apnea, including on a secondary basis to his service-connected polycythemia vera. The Veteran testified to experiencing headaches during service, which he believes were symptoms of undiagnosed sleep apnea, and suggested that his in-service polycythemia was secondary to this condition. He submitted a private medical opinion from Dr. B. linking sleep apnea to GERD, but GERD is not a service-connected condition. The Board considered the Veteran's service records, lay testimony, and multiple VA examinations. Service treatment records did not document sleep apnea or related symptoms. VA examinations in May 2021 and August 2023 diagnosed obstructive sleep apnea in 2017, years after service, and opined it was less likely than not related to in-service headaches or other factors. The August 2023 examiner specifically found no link between polycythemia vera and sleep apnea, stating the etiology of polycythemia is unknown and that any link to sleep apnea is medically unsupported. The Board found the VA opinions more persuasive due to their thoroughness, detail, and consideration of medical literature, concluding the evidence weighed against service connection for sleep apnea on direct or secondary bases. The benefit of the doubt doctrine was not applied as the evidence favored denial. Service connection for sleep apnea was denied.

Rationale

Service treatment records do not document sleep apnea or related symptoms.; VA examinations found obstructive sleep apnea diagnosed post-service.; VA examiners opined less likely than not related to in-service headaches or polycythemia vera.; VA examiner found polycythemia vera etiology unknown and not linked to sleep apnea.; VA opinions found more persuasive due to thoroughness and detail.

Full Decision Text

Citation Nr: 25005230
Decision Date: 04/17/25	Archive Date: 04/17/25

DOCKET NO. 19-01 306
DATE: April 17, 2025

ORDER

Entitlement to service connection for sleep apnea, to include as secondary to service-connected polycythemia vera, is denied.

FINDING OF FACT

The Veteran's current sleep apnea did not begin during active service, is otherwise related to an in-service injury, event, or disease, nor caused or aggravated by service-connected polycythemia vera.

CONCLUSION OF LAW

The criteria for service connection for sleep apnea, to include as secondary to service-connected polycythemia vera, have not been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Army from November 1980 to November 1983 and in the United States Navy from July 1984 to May 2001.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).  

The Veteran testified at a Board hearing in March 2020.  A transcript of that hearing has been associated with the claims file.  

The Board remanded this issue on appeal for further development in May 2020 and March 2023.  The issue has been returned to the Board for appellate review.  The actions requested in the prior remands have been undertaken and the Board finds that there has been substantial compliance with the prior remand instructions, thus no further action is necessary.  See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)).

Neither the Veteran nor representative has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

Although all the evidence of record has been thoroughly reviewed, only the most relevant and salient evidence is discussed below.  See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000).  The analysis in this decision focuses on what the evidence shows or fails to show with respect to the matters decided herein.  The Veteran should not assume that pieces of evidence not explicitly discussed herein have been overlooked.  See Allday v. Brown, 7 Vet. App. 517, 527 (1995).

Service Connection

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.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Service connection may be established on a secondary basis for a disability which is caused by a service-connected disease or injury.  38 C.F.R. § 3.310(a).  Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability.  In such an instance, a veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation.  38 C.F.R. § 3.310(b); see Allen v. Brown, 7 Vet. App.
 when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Service connection may be established on a secondary basis for a disability which is caused by a service-connected disease or injury.  38 C.F.R. § 3.310(a).  Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability.  In such an instance, a veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation.  38 C.F.R. § 3.310(b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995).

 In order to establish entitlement to service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability.  See Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023); Wallin v. West, 11 Vet. App. 509, 512 (1998).   

The Veteran seeks service connection for sleep apnea which he contends began during active service.  He reported at the March 2020 Board hearing that he suffered from headaches during service, which he has suggested were a symptom of undiagnosed sleep apnea.  He has further suggested that onset of polycythemia in service was secondary to undiagnosed sleep apnea and that the development of polycythemia during service is evidence of in-service onset of sleep apnea.  

The Board also notes that in May 2020, the Veteran submitted a private medical opinion from Dr. B. in support of the appeal for sleep apnea.  Dr. B. opined that the Veteran's sleep apnea was aggravated by gastrointestinal reflux disorder (GERD); however, the Veteran is not currently service-connected for GERD.

Finally, the Board notes that the Veteran was stationed at Camp Lejeune during active service.

The question for the Board is whether the Veteran has a current disability of sleep apnea that began during service, is at least as likely as not related to an in-service injury, event, or disease, or caused or aggravated by service-connected polycythemia vera.

The Board concludes that, while the Veteran has a current diagnosis of obstructive sleep apnea, had headaches and polycythemia during service, and is currently service-connected for polycythemia vera, the evidence of record persuasively weighs against finding that this current diagnosis began during active service is otherwise related to an in-service injury, event, or disease, or was caused or aggravated by the service-connected polycythemia vera. 

Service treatment records do not document any diagnosis of or treatment for obstructive sleep apnea or other sleep disorder.  The May 2021 VA Sleep Apnea Examination shows the Veteran was diagnosed with obstructive sleep apnea in 2017, which was multiple years after separation from active service.  

The May 2021 VA examiner opined that the Veteran's current obstructive sleep apnea is less likely than not related to his reported in-service headaches.  The examiner explained that symptoms of obstructive sleep apnea do not begin with headaches but rather other symptoms such as snoring, periods of apnea, daytime sleepiness, and fatigue.   

Most recently, the August 2023 VA examiner opined that the Veteran's obstructive sleep apnea was less likely than not incurred in service or caused by an in-service injury, event, or illness.  The examiner noted the absence of any recurrent sleep apnea-like problems such as snoring or witnessed apneic breathing during the Veteran's active-duty service or immediately thereafter.

The August 2023 VA examiner also concluded that "the claimed [obstructive sleep apnea (OSA)] condition was less likely than not (likelihood is less than approximately balanced or nearly equal) caused by the indicated toxic exposure risk activity(ies), after considering the 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 to include Camp Lejeune Water Contamination - Perchloroethylene (PCE), trichloroethylene (TCE), vinyl chloride, benzene exposure in Camp Lejeune."  The examiner explained that risk factors outside of the military service far outweigh the Veteran's identified toxic exposure risks.  He further stated that medical literature does not support any such connection.

In an October 2023 addendum, the same VA examiner opined that the Veteran's in-service polycythemia was less likely than not an indicator of undiagnosed sleep apnea.  The
ies), after considering the 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 to include Camp Lejeune Water Contamination - Perchloroethylene (PCE), trichloroethylene (TCE), vinyl chloride, benzene exposure in Camp Lejeune."  The examiner explained that risk factors outside of the military service far outweigh the Veteran's identified toxic exposure risks.  He further stated that medical literature does not support any such connection.

In an October 2023 addendum, the same VA examiner opined that the Veteran's in-service polycythemia was less likely than not an indicator of undiagnosed sleep apnea.  The examiner provided the following rationale:

There is absolutely no evidence the [Veteran's] [polycythemia vera (PCV)] was ever attributed to any one particular condition.  Neither is there any evidence of any kind of sustained and chronic hypoxemia and hypercapnia that would lead to PERMANENT polycythemia.  The underlying etiology of the [Veteran's] PCV is still currently not known.  [PCV] occurs when a mutation in a gene causes a problem with blood cell production.  The bone marrow of patients with [PCV] , contains normal stem cells but also contains abnormal clonal stem cells that interfere with or suppress normal stem cell growth and maturation.  Evidence indicates that the etiology of panmyelosis is unregulated neoplastic proliferation.  The origin of the stem cell transformation remains unknown.  The condition could be idiopathic or occasionally inherited.  The temporary elevation of [hemoglobin] that would occur in untreated OSA would not lead to chronic and irreversible PCV once the OSA is treated.  If the in-service onset of PCV represented OSA then the PCV would have resolved by now that the OSA is treated.  Such a link absolutely cannot be made.

Importantly, while the Veteran has asserted a relationship between his service-connected polycythemia vera and current obstructive sleep apnea, there is no evidence that the Veteran's service-connected polycythemia vera caused or aggravated the Veteran's obstructive sleep apnea.  The May 2021 and August 2023 VA examiners have explained that while obstructive sleep apnea may cause or aggravate polycythemia, the reverse is not true.

The Board acknowledges that the Veteran's service personnel records show that he served as a corpsman and has a remote history of medical training; therefore, his opinions concerning the etiology of his sleep apnea are medical opinions.  Nevertheless, the Board gives greater weight to the May 2021, August 2023, and October 2023 VA medical opinions for reasons explained below.  

In cases such as this, where there are conflicting statements or opinions from medical professionals, it is within the Board's province to weigh the probative value of those opinions.  In Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993), the U.S. Court of Appeals for Veterans Claims (Court) stated:

The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicators;...

So long as the Board provides an adequate reason or basis for doing so, the Board does not err by favoring one competent medical opinion over another.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995).  Greater weight may be placed on one examiner's opinion over another depending on factors such as reasoning employed by the examiners and whether or not, and the extent to which they reviewed prior clinical records and other evidence.  Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994).  Additionally, the thoroughness and detail of a medical opinion are among the factors for assessing the probative value of the opinion.  See Prejean v. West, 13 Vet. App. 444, 448-49 (2000).

In this case, the Board notes that the May 2021, August 2023, and October 2023 VA examiners have more extensive and more current medical training compared to the Veteran's.  Additionally, the Board finds that their opinions are more thorough and detailed, with appropriate references to relevant in-service and post-service evidence and medical research.

Thus, the Board concludes that the evidence of record is neither evenly balanced nor approximately so with regard to whether the Veteran's obstructive sleep apnea had onset during active military service
 of a medical opinion are among the factors for assessing the probative value of the opinion.  See Prejean v. West, 13 Vet. App. 444, 448-49 (2000).

In this case, the Board notes that the May 2021, August 2023, and October 2023 VA examiners have more extensive and more current medical training compared to the Veteran's.  Additionally, the Board finds that their opinions are more thorough and detailed, with appropriate references to relevant in-service and post-service evidence and medical research.

Thus, the Board concludes that the evidence of record is neither evenly balanced nor approximately so with regard to whether the Veteran's obstructive sleep apnea had onset during active military service, is otherwise related to an in-service injury, event, or disease, or was caused or aggravated by service-connected polycythemia vera.  Rather, the evidence persuasively weighs against findings service connection for sleep apnea on direct and secondary bases.  The benefit of the doubt doctrine, see 38?U.S.C. §?5107(b), is therefore not for application as to this issue on appeal.  Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application).  

 

T. Blake Carter

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	E. D. Anderson, 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.