Citation Nr: 23056319 Decision Date: 10/16/23 Archive Date: 10/16/23 DOCKET NO. 17-33 152 DATE: October 16, 2023 ISSUE Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to a service-connected tinnitus disability. ORDER Entitlement to service connection for obstructive sleep apnea as secondary to, and based on aggravation by, the service-connected tinnitus disability is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. The Veteran's sleep disorder, diagnosed as sleep apnea, first manifested years after service and is not otherwise attributable to service. 2. The probative and persuasive evidence of record indicates the Veteran's sleep apnea was not caused by the Veteran's service-connected tinnitus disability. 3. The Veteran's obstructive sleep apnea has been aggravated beyond its natural progression by the service-connected tinnitus. CONCLUSIONS OF LAW 1. The criteria for service connection for obstructive sleep apnea on a direct service basis are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 2. The criteria for service connection for obstructive sleep apnea on a secondary basis due to causation by his service-connected tinnitus have not been met. 38U.S.C. §§1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (a). 2. The criteria for service connection for obstructive sleep apnea on a secondary basis due to aggravation by his service-connected tinnitus have been met. 38U.S.C. §§1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served from August1985 to May 1988. The Veteran also had service in the US Army reserves. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a November 2017 rating decisions of a Department of Veterans Affairs (VA), Regional Office (RO). In January 2022, the Veteran testified at a videoconference, virtual hearing before the undersigned Veterans Law Judge (VLJ). A transcript of this hearing is in the record. This matter was previously remanded by the Board in May 2022 and February 2023 for further development, to include affording the Veteran new VA examinations and etiological opinions. Pursuant to the Board's February 2023 remand, the Veteran was afforded a June 2023 VA medical opinion. The Board finds there has been substantial compliance with its remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In an August 2023 Supplemental Statement of the Case (SSOC), the Veteran's claim of service connection for sleep apnea remained denied. The matter has returned to the Board for appellate consideration. The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Entitlement to service connection for obstructive sleep apnea, to include as secondary to a service-connected tinnitus disability. In his January 2022 Board Hearing, the Veteran testified his sleep apnea began during active duty and continued since. The Veteran testified his roommates would tell him he was snoring. The Veteran testified he was told by his ex-girlfriend that during sleep he would basically stop breathing at night. The Veteran testified he never sought treatment for his condition because he didn't know what it was. The Veteran testified he didn't know sleep apnea was a thing until a few years ago. See Board Hearing transcript, pg. 5. In the alternative, the Veteran has asserted his sleep apnea was caused or aggravated by his service-connected tinnitus. See December 7, 2022, VA Form 21-4138, Statement in Support of Claim. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Secondary service connection will be awarded when it is shown that the disability for which the claim is made is proximately due to or the result of a service-connected disease or injury or that a service-connected disease or injury has chronically worsened the disability for which service connection is sought. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). In order to establish entitlement to service connection on a secondary basis, there must be (1) a current disability; (2) a service-connected disability; and (3) a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable. 38 C.F.R. § 3.310 (a) (b); Allen, 7 Vet. App. 439, 448. At the outset, the Board notes, the Veteran has been afforded VA examinations in November 2017, June 2020, August 2022 and June 2023 to determine the nature and etiology of his sleep apnea. In its May 2022 decision, the Board found the November 2017 and June 2020 examinations inadequate for adjudication. In its February 2023 decision, the Board found the August 2022 examination inadequate for purposes of adjudication. The Board pointed out that the VA examiner failed to address the lay assertions from M.J. (the Veteran's ex-girlfriend) and J.R.C. (a fellow service member), regarding the Veteran manifesting symptoms of sleep apnea during service. The Board also found the March 2022 private medical opinions of K.B.C., MD, and J.P.L., MD, inadequate for purposes of adjudication, as there was no indication the Veteran's service treatment records were reviewed in formulating the private medical opinions. The Board did acknowledged receipt of a December 2022 medical opinion from K.C.F., MD, which advanced the contention that the Veteran's sleep apnea was aggravated by his service-connected tinnitus. Additionally, the Board noted the Veteran recently submitted December 7, 2022, literature titled Tinnitus and Sleep Apnea are Connected-Here's Why (Sleep Center of Middle Tennessee, Last updated October 25, 2022), which purports a relationship between tinnitus and sleep apnea. The Board determined that on remand, an examiner must address this article and note review of the December 2022 private medical opinion from K.C.F., MD. The Board's will begin its discussion below with Veteran's service connection claim for sleep apnea on a direct service basis. Discussion The Veteran's service treatment records are silent regarding any complaint, treatment or diagnosis for sleep apnea or a sleep disorder. On his April 16, 1989 Report of Medical History (Quad), the Veteran reports he is in excellent health and affirmatively denies frequent trouble sleeping. In a September 9, 1995 Report of Medical History (Quad), the Veteran reports he is in good health and affirmatively denies frequent trouble sleeping. The Veteran states "I am in good health. I am able to perform my military duties. I am not taking any medications." Private treatment records in February 2016 report a diagnosis of moderate obstructive sleep apnea. See February 4, 2016, Diagnostic Study Report. In support of his service connection claim, the Veteran submitted a lay statement from his ex-girlfriend who stated she lived with the Veteran from 1987 to 1989 and during this time, she observed the Veteran not breathing for long periods of time every night. See February 27, 2020, Lay statement (M.J., ex-girlfriend). The Veteran also submitted a lay statement from a fellow service member who reported that from 1986 through 1988, they shared the same space during a training exercise and that he witnessed the Veteran's loud snoring when they shared a hotel room while assigned to the advanced party team. The fellow service member stated that there were times when the Veteran had to be awakened for signs of not breathing and gasping for air. See April 2, 2020 lay statement (J.R.C.). Pursuant to the Board's remand, the Veteran was afforded a June 2023 VA Medical Opinion to determine the nature and etiology of his sleep apnea. The VA contracted examiner opined that the claimed condition was less likely than not, incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the Veteran was diagnosed with sleep apnea in 2016. His service treatment records provide no evidence that he had this condition while on Active Duty. As such, the claimed condition was less likely than not, incurred in or caused by the claimed in-service injury, event, or illness. In the formulation of this medical opinion, the examiner also addressed each of the lay statements of record noted above in this decision (i.e., letter from M.J., and fellow service member, J.R.C.), purporting to identify symptoms of sleep apnea during the Veteran's time in service. The examiner noted that retrospective recollections of subjective symptoms in another person are subject to bias and memory fallacies. The examiner stated that the Veteran contemporaneously reported being in excellent health and there were no objective symptoms consistent with OSA while he was on active duty. As such, the subjective retrospective recollections carry less probative value and should be discounted. See June 2023, VA Medical Opinion. Analysis The Board finds that the most probative evidence of record indicates that the Veteran's sleep apnea, first manifested years after service and is not otherwise attributable to service. The Board observes that the examiner reviewed the Veteran's entire claims file, including service treatment records and post service treatment records, considered the Veteran's lay assertions regarding the onset of sleep apnea during service (which the Board views as favorable evidence) and provided a well-reasoned rationale for the conclusion reached, also proffering a medical reason for discounting the lay assertions of the Veteran's ex-girlfriend (M.J.) and fellow service member (J.R.C.). While the Veteran asserts that his sleep apnea had its onset during service, the Board finds that he is not competent to draw an etiological relationship between his current sleep apnea and service, as that requires medical expertise and is outside the realm of common knowledge of a layperson. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, the Veteran is not competent to provide an etiological opinion regarding his sleep apnea. Moreover, as sleep apnea is not listed as a chronic disease under 38 C.F.R. §§ 3.307, 3.309, the use of continuity of symptoms to establish service connection is inapplicable. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). It follows that the Board finds that the June 2023 VA Medical Opinion persuasive as to the etiology of this Veteran's sleep apnea. In summary, the Board finds that the Veteran's sleep apnea first manifested years after service, and is not otherwise attributable to service; therefore, service connection on a direct service basis is not warranted. 38 C.F.R. § 3.303. Secondary service conection Turning to the Veteran's secondary service connection theory of entitlement, that his sleep apnea was caused or aggravated by his tinnitus: As referenced above, private medical treatment records indicate that the Veteran was diagnosed with sleep apnea in February 2016. See February 4, 2016, Diagnostic Sleep Study. Also, he is service connected for tinnitus. Thus, the first two elements of service for secondary service connection have been satisfied. See Wallin supra. Therefore, the question remaining for the Board is whether the evidence establishes that the Veteran's sleep apnea was caused or aggravated by his service-connected tinnitus. In a private medical opinion submitted by the Veteran in December 2022, a general practice physician opined, after indicating review of the pertinent medical records, including the Veteran's military and civilian treatment records (to include his February 4, 2016, sleep study) that the Veteran's obstructive sleep apnea (OSA), more likely than not, was aggravated by his service-connected tinnitus. The physician reasoned that there is emerging medical evidence that chronic tinnitus, like the Veteran experiences, increases risk of OSA separate from BMI and severity of sleep apnea. The physician noted that more than 1/3 of patients with OSA had chronic tinnitus, both age and hearing loss may be risk factors of tinnitus in patients with OSA, but neither BMI nor the lowest SP02 was clearly related to the chronic tinnitus. The physician further explained that tinnitus leads to sleep disturbance and increases the frequency of nighttime awakening therefore, worsening symptoms. The physician noted that the recent communication from the VA [November 9, 2022 Supplemental Statement of the Case] stated that his sleep apnea was more likely from non-service-related issues than from tinnitus. However, as detailed above, the Veteran does not have any of the conditions that are likely to cause sleep apnea like diabetes, obesity or craniofacial abnormalities. Therefore, it is more likely than not that his service-connected tinnitus has aggravated his sleep apnea beyond natural progression which is supported by the medical evidence above. The physician noted that there currently is not a pathophysiologic cause between tinnitus and sleep apnea; however, the evidence does support a connection and clearly shows that sleep disturbance caused by tinnitus worsens quality of sleep, sleep disturbance and OSA symptoms. A nexus is established. See December 2022, Medical Opinion, pgs. 1-2 (K.C.F., MD); See also, December 7, 2022, VA Form 21-4138, Statement in Support of Claim. The Veteran submitted an etiological opinion in September 2023 from a neuropsychologist who opined that the Veteran's obstructive sleep apnea was more likely than not, related to his service-connected tinnitus. The neuropsychologist cites studies showing a relationship between sleep apnea and tinnitus and opines that the segue between the Veterans' sleep apnea and tinnitus in this case is the Veteran's stress associated with tinnitus, which the provider reported is associated with sleep disorders, including sleep apnea. See September 2023, Medical Opinion (Dated, July 2, 2022). Pursuant to the Board's remand, in a June 2023, VA Medical Opinion, an examiner opined that the claimed condition of sleep apnea was less likely than not proximately due to or the result of the service-connected tinnitus. The examiner supported this conclusion with the following rationale: "Tinnitus can be classified as objective or subjective. In objective tinnitus, the sound can be heard by an observer, usually with a stethoscope placed at various positions on and around the temporal bone. The sound, which is typically unilateral, is often generated in vascular structures but may also be produced by musculoskeletal structures. Subjective tinnitus can be unilateral or bilateral and can be triggered anywhere along the auditory pathway [1]. Its originis believed to be from neural networks in the auditory cortex that react to a change in the auditory input. It is believed that the central nervous system is the source or "generator" of all tinnitus that does not have a somatic origin, even in patients whose associated hearing losses are due to cochlear injury [2]. Current pathogenic theories include loss of cochlear input to the central auditory system [3,4], loss of suppressive neural connections like that seen in phantom pain [5-7], and abnormalities in serotonin levels in the auditory cortex causing aberrant neural firing [8-10]. These three theories encompass disruption of normal neural firing patterns along the entire auditory pathway, from the end organ to the auditory cortex. They may explain tinnitus in patients who do not exhibit hearing loss, as well as in patients who recover from temporary hearing loss (e.g., noise-induced hearing loss) but develop tinnitus that is persistent [11-13]. The majority of claimants have tinnitus that is a central reaction to hearing loss or change at the cochlea or cochlear nerve level. The neural networks that typically have a low level of stimulation now react abnormally and begin to be overactive, creating the perceived sounds. The theory of loss of cochlear input is supported by positron-emission tomography (PET) scanning and functional magnetic resonance imaging (MRI) studies indicating that the loss of cochlear input to neurons in the central auditory pathways (such as occurs with cochlear hair cell damage due to ototoxicity, noise trauma, or a lesion of the cochlear nerve) can result in abnormal neural activity in the auditory cortex. Such activity has been linked to the perception of tinnitus [7,8]. The side of the tinnitus may not always correspond with the side of initial auditory system insult. A second theory likens tinnitus to phantom pain perception that is thought to arise from a loss of suppression of neural activity [9-11]. Known neural feedback loops act to help tune and reinforce auditory memory in the central auditory cortex. Disruption of auditory input or the feedback loop may lead to the creation of alternative neural synapses and to loss of inhibition of normal synapses. This mechanism explains why some claimants with profound deafness and those who have lost the cochlear nerve or inner ear still can perceive tinnitus. In support of a third theory, many claimants with tinnitus exhibit signs of anxiety and/or depression [7], and elevated serum serotonin levels have been found in some tinnitus claimants [12]. Serotonin and gamma-aminobutyric acid (GABA) receptors are found throughout the auditory system, and neurotransmitter abnormalities may play a role in some claimants with tinnitus [12-14]. While it is possible that tinnitus can cause disorders of sleep due to the stimulation of the auditory nerve, this is not related to or causative of obstructive sleep apnea (OSA). There is nothing in the medical literature linking tinnitus with OSA. OSA is caused by obstruction of the upper airway. This is an anatomical abnormality. Documented Risk factors for OSA are: Older age - The prevalence of OSA increases from young adulthood through the sixth to seventh decade, then appears to plateau [2,4,5]. Male sex - OSA is approximately two to three times more common in males than females, although the risk appears to be similar once females are peri- and postmenopausal [1,3-5]. Obesity - The risk of OSA correlates well with the body mass index (BMI) [5,6]. In one study, a 10 percent increase in weight was associated with a six-fold increase in risk of OSA [9]. In another study, moderate to severe OSA (apnea-hypopnea index [AHI] =15) was present in 11 percent of males who were normal weight, 21 percent who were overweight (BMI 25 to 30 kg/m2) and 63 percent of those who were obese (BMI >30 kg/m2) [5]. Similarly, in females, OSA was present in 3 percent of claimants who were normal weight, 9 percent of those who were overweight, and 22 percent of those who were obese. The majority of individuals with obesity hypoventilation syndrome (OHS) have OSA (90 percent); OHS is discussed separately. Craniofacial and upper airway abnormalities - Craniofacial or upper airway abnormalities increase the likelihood of having OSA [6]. These factors are best recognized in Far-East Asian claimants where obesity is not as major a risk factor compared with the United States [10]. Examples of abnormalities include an abnormal maxillary or short mandibular size, a wide craniofacial base, and tonsillar and adenoid hypertrophy, the latter being common in children. Less well-established risk factors include the following: Smoking - Smoking may increase the risk of or worsen OSA. In one study, current smokers were nearly three times more likely to have OSA than past or never smokers [11]. Family history of snoring or OSA - While a family history of snoring or OSA could be due to shared behavioral or environmental factors, there may also be a genetic predisposition to OSA through factors such as craniofacial structure [12]. It has been suggested that about 40 percent of the variance of the AHI has a genetic basis [13]. In another study of rural Brazilians, the heritability of an AHI >5/hour was intermediate (25 percent) [14]. Others - Nasal congestion confers an approximately two-fold increase in the prevalence of OSA compared with controls, regardless of the cause [6]. However, OSA may or may not improve with correction of nasal congestion. Exposure to high levels of environmental nitrogen dioxide and particulate matter may contribute to variations in OSA among claimant populations [15]. While a variety of substances and medications, including alcohol, benzodiazepines, narcotics, and possibly gabapentinoids may exacerbate OSA, a causative link is unproven [16,17]. The prevalence of OSA is also increased in patients with a variety of medical conditions, including the following: OHS (obesity hyperventilation syndrome), Congestive heart failure Atrial fibrillation [18], Pulmonary hypertension [19], Hypertension (particularly resistant hypertension), cardiovascular disease, atrial fibrillation, and pulmonary hypertension End-stage kidney disease Chronic lung disease, including asthma, chronic obstructive pulmonary disease (COPD), and idiopathic pulmonary fibrosis Stroke and transient ischemic attacks Pregnancy Gestational diabetes [20], Pregnancy-induced hypertension [21], Acromegaly Hypothyroidism Polycystic ovary syndrome Parkinson's disease [22], Floppy eyelid syndrome [23-25]. Other medical conditions that may have an increased association with OSA include fibromyalgia [26,27], Barrett's esophagus [28], gastroesophageal reflux disease (GERD) [25,29], secondary polycythemia [30], and Down's syndrome [31]. Whether there is an increased prevalence of OSA in posttraumatic stress disorder is unclear [32]. Risk factors increase the likelihood of finding the condition in people with those conditions, it does not imply causation. Tinnitus is not listed as a condition which increases the risk of OSA. What this means is that in two groups of people who have similar characteristics other than one groups comprises people with tinnitus and the other groups has no tinnitus, there is no difference in prevalence of OSA between the two groups. As such, the claimed condition is less likely than not (likelihood is less than approximately balanced or nearly equal) proximately due to or the result of the Veteran's service-connected condition." See June 2023, VA Medical Opinion, pgs. 1-16. The June 2023 VA examiner also addressed the December 7, 2022, Literature submitted by the Veteran titled Tinnitus and Sleep Apnea are Connected-Here's Why (Sleep Center of Middle Tennessee, Last updated October 25, 2022), purporting a relationship between tinnitus and OSA. The examiner stated that this was not a scientific article, and that there is no research or biological plausibility connecting one condition with the other. The examiner concluded that the article does not support the contention of causation. Id. at pgs. 15-16. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Analysis The Board finds the June 2023 VA medical opinion probative and persuasive as to whether the Veteran's obstructive sleep apnea was proximately caused by the Veteran's tinnitus. The examiner provided well-reasoned rationale, while citing extensively to scientific research in order to support the conclusion reached. Further, the examiner adequately addressed the Veteran's literature, which purported a relationship between sleep apnea and tinnitus, concluding that the Veteran's literature did not support the contention of causation. See June 2023, VA Medical Opinion, pgs. 15-16. The Board acknowledges that a July 2022 neuropsychologist provided an opinion on causation, but finds that the nexus opinion (although lengthy) does not offer sufficient rationale to support the conclusions reached and therefore, the Board finds this July 2022 nexus opinion on causation non-probative. See July 2022, Medical Opinion (Receipt date, September 7, 2023). Stated another way, the Board finds the probative and persuasive evidence of record (June 2023, VA Medical Opinion) indicates the Veteran's sleep apnea was not caused by the Veteran's service-connected tinnitus disability. Conversely, the Board finds that the December 2022 private physician provided a probative positive nexus opinion relating the Veteran's obstructive sleep apnea to his service-connected tinnitus. That is, the private physician found that the obstructive sleep apnea was aggravated beyond its natural progression by the service-connected tinnitus. The Board observes that the same physician determined that there currently is not a pathophysiologic cause between tinnitus and sleep apnea-much like the June 2023 VA contracted examiner. However, the December 2022 private physician, with rationale supported by sound medical reasoning, determined that the evidence does support a connection and clearly shows that sleep disturbance caused by tinnitus worsens quality of sleep, sleep disturbance and OSA symptoms. The physician determined that a nexus is established. See December 2022, Medical Opinion, pgs. 1-2 (K.C.F., MD). Significantly, the Board observes that while the June 2023 VA contracted examiner determined the Veteran's OSA was not aggravated by the Veteran's service-connected tinnitus, the examiner used the same causation rationale to support a negative nexus for aggravation-concluding that the Veteran's OSA was not proximately caused by his service-connected tinnitus. See June 2023, VA Medical Opinion, pgs. 3-8. In other words, it does not appear that the VA examiner addressed whether the Veteran's service-connected tinnitus increased the severity of the Veteran's OSA. Here, the Board finds that the December 2022 private physician does not necessarily contradict the conclusions of the VA examiner. See December 2022, Medical Opinion, pgs. 1-2 (K.C.F., MD). To this point, the Board notes that medical reports must be read as a whole, and the Board is permitted to draw inferences based on the overall report so long as the inference does not result in a medical determination. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012). Notwithstanding, the Board finds the December 2022 physician provided sufficient rationale for the Board to make an informed decision with respect to aggravation and probative evidence to support a grant, based on aggravation, and that remand would serve no useful purpose in the adjudication of this claim. See Coburn v. Nicholson, 19 Vet. App. 427, 434 (2006) (Lance, J., dissenting) (noting that an unnecessary remand "perpetuates the hamster-wheel reputation of veterans law"). Separately, the Board does credit the June 2023 VA contracted examiner who thoroughly addressed the Board's remand directives and provided well-reasoned rationale to support the conclusions reached, greatly assisting the Board in making an informed decision in the adjudication of this Veteran's claim. That said, based upon the foregoing supportive evidence (December 2022 Medical Opinion), the Board finds that the Veteran's obstructive sleep apnea was aggravated beyond its natural progression by the service-connected tinnitus disability. Thus, the Veteran meets the criteria for secondary service connection for his obstructive sleep apnea. He has been diagnosed with a disability which has been found to have been aggravated by his service-connected tinnitus. Therefore, service connection for obstructive sleep apnea on a secondary basis due to aggravation by his service-connected tinnitus is granted. 38 C.F.R. § 3.310 (b). Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Little, Associate 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.