Citation Nr: 1629190 Decision Date: 07/21/16 Archive Date: 08/01/16 DOCKET NO. 13-18 499 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for obstructive sleep apnea (OSA). 2. Entitlement to service connection for a respiratory/pulmonary disorder, to include as secondary to claimed OSA. 3. Entitlement to service connection for residuals of a tonsillectomy, to include as secondary to claimed OSA. ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran had active duty service from June 1977 to June 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied service connection for sleep apnea, tonsillectomy, a breathing condition, and a chronic cough. The Board has considered the breathing condition and cough as part of a claim of service connection for any respiratory/pulmonary disorder. In April 2015, this matter was remanded for additional development. That development having been completed, the claim has returned to the Board for further appellate action. FINDINGS OF FACT 1. Obstructive sleep apnea did not have its onset in service and is not otherwise related to service or a service-connected disability. 2. The Veteran does not have residuals of a tonsillectomy that had their onset in service or are otherwise related to service or a service-connected disability. 3. A respiratory or pulmonary did not have its onset in service and is not otherwise related to service or a service-connected disability. CONCLUSION OF LAW 1. The criteria for an award of service connection for obstructive sleep apnea have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.310 (2015). 2. The criteria for an award of service connection for residuals of tonsillectomy have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.310 (2015). 3. The criteria for an award of service connection for a respiratory or pulmonary disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA. In letters dated in May and August 2010, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2014) and 38 C.F.R. § 3.159(b) (2015). The RO notified the Veteran of: information and evidence necessary to substantiate the claims at issue; information and evidence that VA would seek to provide; and information and evidence that the he was expected to provide. The Veteran was informed of the process by which initial disability ratings and effective dates are assigned, as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The "duty to assist" contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, and that VA will provide a medical examination when necessary to make a decision on the claim. 38 C.F.R. § 3.159 (2015). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2014) and 38 C.F.R. § 3.159(c) (2015). Relevant service treatment and other medical records have been associated with the claims file. The Veteran was afforded VA examinations in July and September 2015 which, taken together, are fully adequate to decide the claims. The examiner indicated that the Veteran's claims file was reviewed and fully explained the basis for the opinions provided. This matter was remanded in April 2015 for a VA examinations and a general request for additional evidence. The examinations were conducted in July and September 2015 and are adequate to decide the claims. The Veteran was also sent a request for additional evidence in June 2015. The Veteran responded with additional statements in connection with the claims. As such, the Board finds that there has been substantial compliance with the terms of the Board's remand directives. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). II. Analysis. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection generally requires 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 present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be granted for listed chronic diseases when the disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Under § 3.303(b), an alternative method of establishing the second and/or third elements of service connection for a listed chronic disease is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a)). In this regard, the Board notes that lay persons may provide evidence of diagnosis and nexus under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In addition, service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (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. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt will be resolved in each such issue in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. An appellant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the evidence must preponderate against the claim. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Alemany v. Brown, 9 Vet. App. 518 (1996). In this case, the Veteran contends that his sleep apnea was a result of his military service. He stated in his initial claim for benefits in May 2010 that during military service he had an enlargement of his tonsil area "which was the earliest onset of sleep apnea." He additionally submitted a statement from his spouse which indicated that the Veteran had been experiencing sleep apnea symptomatology throughout their marriage, which was over 25 years at that time. A lay statement from a co-worker also indicated symptoms consistent with sleep apnea. The Veteran reported that his tonsils were initially irritated during military service and that this ultimately led to a tonsillectomy and consequent disability. A review of the Veteran's service treatment records found no evidence of treatment for or diagnosis of sleep apnea in service. There is also no objective record of complaints of snoring in service or an inability to breathe while sleeping. A review of the service treatment records found no evidence of treatment for or diagnosis of a chronic breathing condition in service, but did indicate that the Veteran was seen in February 1979 in the emergency room for complaints of head and chest pressure, cough, and congestion. The Veteran was diagnosed with an upper respiratory infection. A few days later the Veteran reported that he felt much better and was ordered to return to duty. There were no further complaints or treatment. Post service private treatment records indicate a diagnosis of sleep apnea in 2008. Private records also indicate that the Veteran underwent a tonsillectomy in July 2009. Post-service treatment records show complaint for breathing problems and a diagnosis of nonallergic rhinitis, nasal septoplasty, and adenoid enlargement. Records also show treatment for cough in 2008 with Augmentin and Prednisone. These records do not indicate an etiology for these conditions. In order to determine whether the Veteran has claimed disabilities that had onset in or were caused by his military service, the Veteran was afforded VA examinations dated in July and September 2015. The Veteran's claims file was reviewed in connection with the examinations. The Veteran was diagnosed as status post tonsillectomy in 2009. The Veteran reported that he thought his sleep apnea was due to this condition. The Veteran was also noted to have obstructive sleep apnea, but the examiner found that the Veteran had no diagnosed respiratory conditions, indicating that the Veteran denied any diagnosis of or treatment for any respiratory condition. The Veteran underwent a PFT that indicated a normal spirometry, normal lung volumes, normal diffusion capacity, and indicated a totally normal lung function with no evidence of any disease. With respect to sleep apnea, the examiner noted that Veteran was diagnosed with this condition in 2008 by a sleep study and was treated with bi-pap. The Veteran reported that he no longer used the bi-pap due to discomfort and interference with his wife's sleeping, and he reported that he had continued daytime sleepiness. He was noted to have symptoms of persistent daytime hypersomnolence. After examination, the examiner found that sleep apnea was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner explained that the Veteran had been diagnosed with obstructive sleep apnea, but that the condition was less likely caused by military service and most likely is due to his obesity, gender, and age. The examiner noted that, if his obstructive sleep apnea was due to enlarged tonsils, then the tonsillectomy done in July 2009 would have resolved the sleep apnea. As this procedure did not resolve the OSA, it is less likely that the OSA was due to any tonsil enlargement, tonsil irritation or other tonsil condition. The examiner noted the Veteran's contentions that he has snoring, chronic cough, daytime sleepiness and obstruction of breathing due to enlarged tonsils. The Veteran indicated that this was evidence of the presence of obstructive sleep apnea while he was on active duty. However, the examiner stated that none of these conditions were reported in the Veteran's military medical records. The examiner noted that the Veteran was treated two times while on active duty for complaints of congestion and sore throat. In neither record did the Veteran have complaints of chronic cough, snoring, or any difficulty breathing and in both cases the vet was diagnosed with acute upper respiratory infections and treated symptomatically with resolution of symptoms and return to full duty. Additionally, although the Veteran's tonsils are noted to be enlarged in the examination in February 1979, there was no notation of enlarged tonsils noted in the examination of January 1980. In his civilian medical records, the examiner indicated that the Veteran has "recent chronic cough" in January 2009. He was sent for allergy testing and ENT referral. The Veteran was diagnosed with OSA in December 2008. At that time the Veteran's was noted to weigh 268 pounds and have a height of 69 inches. A BIPAP sleep study was conducted in December 2008 and the Veteran was started on BIPAP. The Veteran subsequently elected to proceed with a tonsillectomy, nasalseptoplasty, and turbinate reduction in July 2009. A post-operative sleep study was ordered. This post-operative evaluation in October 2009 revealed only mild improvement in the Veteran's obstructive sleep apnea. In a follow-up report dated in September 2015, the examiner explained that medically, there was no disorder due to the tonsillectomy. It was noted that the Veteran thought that his obstructive sleep apnea was due to his tonsillectomy. The examiner, however, stated that the Veteran's obstructive sleep apnea was not caused by or aggravated by his tonsillectomy. It was found that there was no residual disorder that began in or is otherwise related to the Veteran's military service, to include treatment for upper respiratory infections therein or to any other condition treated while on active duty. The examiner also found that the Veteran's obstructive sleep apnea did not begin during or was otherwise in any way related to the Veteran's military service, to include treatment for upper respiratory infections therein or to any other condition treated while on active duty. The examiner indicated that the Veteran's lay statements had been reviewed. The examiner acknowledged that the Veteran believes with all his heart that his tonsils/tonsillectomy caused his OSA. However, the examiner found that the medical evidence does not support that belief. The examiner indicated that if this were true, a tonsillectomy would have cured the condition as they were no longer present to obstruct his breathing. Also, as the OSA was diagnosed in 2008 prior to his tonsillectomy in 2009, the tonsillectomy could not have caused the sleep apnea. The examiner went on to note that, at the time of his diagnosis in December 2008 the Veteran weighed 268 pounds and had a height of 69 inches, which made his BMI to be greater than 39, which placed him in the category of extremely obese. The examiner then found that the Veteran's obstructive sleep apnea was caused by his obesity, age, and/or male gender, and not any tonsil condition, any tonsillectomy, any tonsillectomy residual, any upper respiratory condition or any other condition diagnosed or treated while on active duty or any condition the Veteran believes to be the cause of his OSA. Based on the foregoing, the Board finds that service connection is not warranted at this time for the Veteran's claimed conditions. The Veteran was noted to have diagnosed sleep apnea, and a possible respiratory disability, to include nonallergic rhinitis. The VA examiner found no diagnosed respiratory or pulmonary disabilities and no residuals of tonsillectomy, except for the fact that the Veteran no longer has tonsils. In addition, the examiner found that none of the claimed conditions was caused or aggravated by military service. There are no contrary opinions of record. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. Nieves-Rodriguez, 22 Vet. App. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). In this case, the July 2015 VA examiner reviewed the Veteran claims file and was apprised of the medical history and the Veteran's contentions regarding his claims. After examination and review, the examiner provided definite opinions supported by a reasoned rationale. As such, these opinions are highly probative. The Veteran has contended on his own behalf that his conditions had their onset in service or were aggravated by service. The Veteran has submitted lay statements in connection with his claim reflecting that he has had symptoms of his disorders in and since service. In this regard, lay witnesses are competent to provide testimony or statements relating to symptoms or facts that are observable and within the realm of his or her personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir. 2007) (noting that lay testimony may be competent to identify a particular medical condition). Specifically, in Jandreau, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit commented that competence to establish a diagnosis of a condition can exist 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. Similarly, the Court has held that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In this case, however, the question of whether the Veteran has conditions that had onset in service is a complex medical question that is not subject to lay observation alone. As the September 2015 VA examiner indicated, there is no medical basis for the Veteran's claims. Hence, the opinions of the Veteran in this regard are not competent in this case. Additionally, as the Veteran's claimed disabilities are not chronic diseases, lay evidence of continuity of symptomatology cannot serve as an independent basis for an award of service connection. In summary, the medical evidence in this case is against the claims. As such, the preponderance of the evidence is against service connection. Reasonable doubt does not arise and the claims, the claims must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for obstructive sleep apnea is denied. Service connection for residuals of tonsillectomy is denied. Service connection for a respiratory or pulmonary disability is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs