Sleep Apnea as a Secondary to?

[DMacc1776]

 I just filed my first claim with the VA 20 months ago. I have successfully been awarded tinnitus, anxiety disorder, asthma bronchial, and headaches.

I began using a CPAP 10 years ago at my own cost and have been since. Since registering with the VA they now provide supplies.

I badly want to connect sleep apnea to my service for obvious reasons and daily I am fearful of the regulations changing.

I do have two buddy letters in support. One was from my wife while on Active duty and one was from my 2nd wife, now my 2nd EX.

I am a Gulf War-era vet so I get those presumptives associated with that era. 

I have a CT scan scheduled for next Tuesday for sinus because I do suffer from sinusitis but I haven't filed that claim as of yet.

 Would any of you recommend filing sleep apnea as a secondary to any of those mentioned above or should I risk it and wait on sinusitis? Which could be months.

 I fear the VA will say it is because I've gained 50 lbs since serving, rather than connecting it. 

If I claim it and gets denied can I re-claim later as secondary to something else?

 I am sorry for the long post. I promise I will be reading as many posts on here as possible in the coming weeks so I do not ask questions regularly. 

Thanks for any advice.

[ShrekTheTank]

The VA has a duty to assist.  

I would let them decide if it secondary to something or not.

If you have sleep apnea then you have it.  

Mine is secondary to PTSD and I think that would fall in line with your anxiety disorder.  When I did my Lay statement I told about how my Sleep Apnea affected my serivce connected PTSD.  There is also a lot of documentation about it in medical articles.  Or if you feel it is secondary to anything thing else, sometimes you have to guide the VA and let the medical evidence show it.

I would say file and keep appealing if you feel you should be service connected for it.

[Tbird]

You may find this case helpful for reference https://www.va.gov/vetapp21/Files11/A21018009.txt

Citation Nr: A21018009

Decision Date: 11/09/21 Archive Date: 11/09/21

 

DOCKET NO. 200924-110044

DATE: November 9, 2021

 

ORDER

 

Entitlement to service connection for obstructive sleep apnea, as secondary to posttraumatic stress disorder (PTSD), is granted.

 

FINDING OF FACT

 

The Veteran's obstructive sleep apnea is caused by or is the result of her service-connected PTSD. 

 

CONCLUSION OF LAW

 

The criteria for service connection for obstructive sleep apnea, as secondary to PTSD, are met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 

 

REASONS AND BASES FOR FINDING AND CONCLUSION

 

The Veteran had active service in the U.S. Navy from March 1990 to February 1995.  

 

The Appeals Modernization Act (AMA) creates a new framework for Veterans dissatisfied with Department of Veterans Affairs' (VA) decision on their claim to seek review.  The AMA became effective on February 19, 2019. 38 C.F.R. § 3.2400(a)(1).  The AMA applies to all initial decisions issued after February 19, 2019.   

 

The present matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2020 rating decision issued by VA Agency of Original Jurisdiction (AOJ).  Accordingly, the decision is subject to the AMA.  The Veteran timely appealed this rating decision to the Board in a September 24, 2020 VA Form 10182 Notice of Disagreement.  The Veteran requested the direct review lane, which limits the Board's review to evidence of record at the time of the September 2020 rating decision.

 

Service Connection 

 

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran 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-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection.

 

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

 

Additionally, service connection may be granted on a secondary basis when the evidence establishes (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.  See Wallin v. West, 11 Vet. App. 509, 512; 38 C.F.R. § 3.310.

 

Service connection must be considered on the basis of the places, types, and circumstances of his service as shown by his service records, the official history of each organization in which he or she served, his or her medical records, and all pertinent medical and lay evidence.  See 38 C.F.R. § 3.303 (a); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) and Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006).

 

1. Entitlement to service connection for obstructive sleep apnea secondary to posttraumatic stress disorder (PTSD)

 

The Veteran maintains that her obstructive sleep apnea is caused by her service-connected PTSD.  The Board agrees and finds that the elements of service connection on a secondary basis have been established. 

 

With respect to current disability, the record reveals that the Veteran was diagnosed by sleep study with obstructive sleep apnea in June 2016.  Accordingly, the Board finds that a current disability has been established.

 

The remaining question is whether the Veteran's obstructive sleep apnea was either caused by or aggravated by her service-connected PTSD. 

 

The record contains numerous positive and negative medical opinions addressing this question.  In February 2020, a VA examiner concluded that the Veteran's obstructive sleep apnea is less likely than not cause by or the result of the Veteran's service-connected PTSD.  However, the examiner cited to a medical journal article supporting the opposite conclusion.  This article notes that a critical review of the literature supports an association between PTSD and sleep disordered breathing in both combat-related and non-combat-related PTSD.  Furthermore, the examiner only cited to this article and did not address the Veteran's lay statements in reaching his opinion.  Accordingly, the Board finds that the examiner's opinion is inadequate and has no probative weight.  However, the Board affords some probative weight to the treatise evidence cited to by the examiner, as it directly addresses the relationship of PTSD to obstructive sleep apnea.  

 

Treating records also include a notation from a doctor in July 2020, who concluded that sleep apnea is a physical condition that is not caused by PTSD.  However, this doctor provided no rationale to support his conclusion.  Furthermore, the medical literature cited to by the April 2020 psychologist indicates that there is indeed a relationship between the two.  Accordingly, the Board finds that this opinion is inadequate and affords it no probative weight.

 

Additionally, a September 2020 VA examiner offered a negative nexus opinion on the basis of direct service connection.  However, the examiner did not offer an opinion as to whether the Veteran's obstructive sleep apnea is caused by or aggravated by her service-connected PTSD.  Accordingly, the Board finds that this opinion is inadequate and affords it no probative weight.  

 

Contrary to these opinions, a private psychologist offered a positive opinion in April 2020.  The psychologist concluded that the Veteran's sleep apnea more likely than not is related to her service-connected PTSD.  In support of this conclusion, the psychologist cited to peer-reviewed scientific studies showing a connection between anxiety, PTSD, and sleep apnea.  Additionally, the psychologist indicated that the Veteran is positive for only two predisposing risk factors for sleep apnea, being African American and obese.  Ruling out other factors for obstructive sleep apnea, such as gender and medical history of deviated septum, stroke, congenital deformity, or chronic diseases of the nose, the psychologist concluded that it is more likely than not that the Veteran's obstructive sleep apnea is caused by her PTSD.  This opinion is thorough and is supported by a complete rationale.  It was based on an interview with the Veteran, a review of her medical records, and a review of the medical literature.  Accordingly, the Board finds that it is highly probative and affords it significant weight.    

 

Another positive opinion was offered by a private psychiatrist in August 2020.  This psychiatrist concluded that that the Veteran developed obstructive sleep apnea due to two phenomena.  First, she noted that PTSD itself leads to disrupted sleep architecture, promotes sleep disordered breathing, and causes neurophysiological changes within the body.  Second, she indicated that the Veteran's obesity with progressive weight gain has played a role in the development of obstructive sleep apnea.  With respect to the former, she noted that PTSD causes nightmares and disorder breathing during sleep and having the condition itself has led to physiological changes in the Veteran that developed into obstructive sleep apnea.  Additionally, the psychiatrist cited to peer-reviewed scientific studies that supports a connection between PTSD and obstructive sleep apnea.  This opinion is thorough and is supported by a complete rationale.  It was based on an interview with the Veteran, a review of her medical records, and a review of the medical literature.  Accordingly, the Board finds that it is highly probative and affords it significant weight.   

 

In sum, the most probative evidence of record, the two private positive opinion and medical literature cited to by the February 2020 VA examiner and two private doctors, demonstrates that the criteria for entitlement to service connection for obstructive sleep apnea secondary to the Veteran's PTSD have been established. 

 

 

 

 

 

GAYLE STROMMEN

 

Veterans Law Judge

 

Board of Veterans' Appeals

 

Attorney for the Board T. Beech, 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.

 

[broncovet]

You dont have to choose!!!!!!!  File for OSA both direct (primary) and secondary to any of your SC conditions.  Let the doctors/raters do their job and sort it out.  

HINT:   To get it SC, you are gonna need a medical opinion that your sleep apnea is at least as likely as not related to either:

A.  An event in your military service.  OR

B.  Related to one or more of your SC conditions.  

    I have not read your file and dont know if a doc has provided a nexus, like that above or not.  If not, you will need a medical opinion.  Buddy letters will help "if" you had an event in service which allegedly caused OSA, such as a face/nose/throat/sinus condition or inujury, or depression or PTSD.  There is a strong link of PTSD to OSA, but you have to show that YOUR OSA is related to YOUR PTSD, not just people in the study.  

[Rattler]

Lets try this secondary to your SC asthma bronchial. Last time I was with some one who had asthma attack she turned blue and scared the hell out of me. (Over 40 years ago) 

Recent studies have shown that there is a link between bronchial asthma and OSA and there is a bidirectional relationship where each disorder adversely influences the other one. [4] Patients of asthma appear to have an increased risk for OSA than general population.

Try this link there is some good amination for your gun. (See the listed studies)

Is asthma bronchial related to sleep apnea

As you have been rated for asthma bronchia via I am assuming the PACT ACT for your Gulf War-era Service. it shouldn't be a big jump to a secondary.