Citation Nr: 1751132 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 09-47 581 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection of obstructive sleep apnea (OSA), to include as secondary to service-connected disability. REPRESENTATION Veteran represented by: Robert V. Chisholm, Attorney at Law ATTORNEY FOR THE BOARD P. Yoffe, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1981 to February 2003 in the U.S. Navy as a maintenance technician, aeronautical welder, and instructor. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board previously denied the claim in a February 2017 Board decision. The Veteran appealed that decision. In August 2017, after a Joint Motion for Remand (JMR), the U.S. Court of Appeals for Veterans Claims (Court) vacated the claim. The claim now returns to the Board. FINDINGS OF FACT 1. Obstructive sleep apnea did not manifest in service and is not related to service. 2. Obstructive sleep apnea is unrelated (causation or aggravation) to service connected disease or injury. CONCLUSIONS OF LAW 1. Obstructive sleep apnea was not incurred in or aggravated by service and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016) 2. Obstructive sleep apnea is not proximately due to, the result of, or aggravated by service-connected asthma. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) specifies the VA's duties to notify and assist. See 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.159, 3.326 (2016). The Veteran and his representative have not raised any argument(s) with respect to the adequacy of notice and assistance. 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). Therefore, the appeal may be considered on the merits. Service Connection The Veteran contends that his current sleep apnea is secondary to his service-connected asthma and states that although he uses his CPAP to assist him with his sleep apnea, he wakes up gasping for air and in need of his emergency inhaler three to four times a night. See November 2009 Correspondence. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110, 1131 (West 2014). To establish a right to compensation, a Veteran must show: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); see also Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). For a medical opinion (i.e., medical evidence) to be given weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). 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.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Joint Motion for Remand The case here involves whether the Veteran's obstructive sleep apnea is secondary to a service-connected disability. The pertinent part of the JMR states "the parties agree the Board must explain why it deemed permanent aggravation to be the appropriate standard to determine aggravation, given that this language is not used within 38 C.F.R. § 3.310(b)." August 28, 2017 JMR Order at 2. Specifically, "the Board erred when it failed to provide an adequate statement of reasons or basis for its statement that "[a]ggravattion means that the disability permanently worsened its natural progression." Id. (emphasis in the original). The Board relied on the language used in 3.310(b) as the correct standard in this case. Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. Any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease or injury will be service connected. 38 C.F.R. § 3.310(b). In the context of secondary service connection, aggravation meanings "any increase in disability." Allen v. Brown, 7 Vet. App. 439, 445 (1995). The parties did not address the Allen Court's holding that the term "disability" as used in 38 U.S.C.A. § 1110 refers to impairment of earning capacity, and that such definition mandates that any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, shall be compensated. Allen, 7 Vet. App at 448. Sleep Apnea The Veteran has OSA, first diagnosed in April 2007 after a sleep study in March 2007. He claims that OSA is secondary to his service connected asthma disability. He is treated with CPAP and has symptoms including daytime sleepiness, to include drowsy driving several times a week, with the Veteran unable to get more than four hours of sleep when using the mask, and a history of snoring and choking sensations at night. In September 2009, the Veteran was first provided a VA examination to assess his sleep apnea. The VA examiner found that the Veteran is "less likely as not to have asthma as the cause of his obstructive sleep apnea." The examiner additional noted that the Veteran "is less likely as not to have asthma as the cause of [OSA]" and it is "less likely than not asthma [is the] cause of his sleep apnea." However, the examiner stated that the service-connected asthma "may at least as likely as not cause an acute aggravation of his obstructive sleep apnea but not permanently." In a July 2013 decision, the Board remanded the claim for a more detailed opinion, as the Board concluded there was no rationale in the September 2009 opinion and the opinion was conclusory. In an August 2013 VA opinion, the VA examiner opined, "[t]he claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness." The examiner explained that although a VA examination in 2002 notes a diagnosis of asthma, triggered by solvent, dust, and cigarettes, with treatment with albuterol and flovent, the Veteran "was suspected to have OSA at a later stage when he [had] problems with daytime sleepiness, snoring and waking up suddenly gasping for air." For secondary service connection, the examiner stated "[a]sthma is not a known cause of OSA" and "claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service connected condition." The Board briefly notes that the August 2013 VA examiner marked that OSA preexisted service. This is clearly erroneous and the record does not support such a finding. There are neither notes of treatment nor reports of OSA until December 2006, as opposed to an onset prior to 1981, when the Veteran entered service. The Veteran has not contended such. This opinion is not probative on the matter and such a theory of entitlement will not be further discussed here. Because the Board reported inconsistencies with the September 2009 and August 2013 opinions, a VHA was requested. A staff physician provided a medical opinion in June 2016. The staff physician's opinion summarized the Veteran's service treatment records, medical treatment records, medical examinations, and assertions. The staff physician concluded that it was less than likely as not that the Veteran's sleep apnea is related to the Veteran's military service, explicitly stating that "military service did not cause OSA in this Veteran (0 percent chance in this Veteran)." The VHA opinion states that "there is strong evidence that OSA is predominantly due to obesity." The Veteran gained almost 50 pounds after he was discharged from the military and the opinion states that "this is most likely the cause of him developing OSA." The opinion notes "OSA most likely requires a genetic predisposition, including genes that control craniofacial bony structure[,] . . . genes that control fat deposition into the tongue[,] . . . and genes that control ventilator stability." The opinion states that the Veteran's service did not alter the Veteran's genetics or any predispositions. The VHA opinion noted that there can be "extraordinary causes of OSA that could be related to military service-this would include severe facial or upper airway bone or soft tissue injury that occurred because of military service, e.g., blast injury, accident, etc. that occurred during time in military." The staff physician reported that he "did not find any reference to this Veteran suffering from major facial or upper airway injuries during his time in the military that could cause him to have OSA." However, the VHA states, in a heading, that "asthma is at least as likely as not to cause OSA." A clarification was requested from the staff physician and an addendum, dated July 2016 (for simplicity, both together are referred to as "the VHA"). The staff physician clarified as to the question of whether "the Veteran's service-connected asthma caused the [Veteran's] sleep apnea-the answer is no." The addendum opinion stated "the Veteran's service-connected asthma aggravated the patient's sleep apnea-the answer is greater than 50 percent not likely, but that data/research is still not yet definitive on this matter." The staff physician had stated in the prior VHA that asthma is a disease of the small lower airways, while OSA is a collapse of the upper airway (nasopharynx and/or oropharynx). The staff physician noted: A new study in 2015 . . . concluded that asthma was associated with an increased risk of new-onset OSA. However, studies investigating the mechanisms underlying this association have yet to be elicited. Once mechanisms are understood, then whether all asthmatics or only specific subpopulation of asthmatics are at increased risk of OSA will be better elicited. Therefore, although a link has been established between asthma and OSA, it does not mean that this specific Veteran's OSA is linked to asthma. As result, the staff physician concluded that such a connection has not been determined, and that such connection does not apply to this case. The opinion noted that uncontrolled asthma may cause the Veteran to obtain less sleep, reporting of using his inhaler four times during sleep, the staff physician also noted several other factors that may contribute to his sleep apnea, namely the Veteran's body mass index (BMI) and the CPAP mask "leading to poor tolerance and fragmented sleep then pulling off the mask leading to noncompliance of CPAP and overall poor quality of sleep." Moreover, the staff physician explained that "a study demonstrates that CPAP use improves asthma quality of life," and concluded that Veteran is noncompliant with CPAP for his OSA treatment. Therefore, the staff physician noted that there could be various causes of excessive daytime sleepiness, "including insomnia from shift work (short sleep and fragmented sleep), medications, and morbidities other diagnosed or undiagnosed chronic diseases." However, the staff physician still determined it was less likely than not that asthma caused OSA. Essentially, the staff physician's VHA opinion found that it is less likely than not that the Veteran's asthma caused OSA, but he could not definitively rule it out (as he had with the Veteran's service directly causing OSA), as the data was uncertain with some sub-population and some studies had shown "a link" between OSA and asthma, although this was not necessarily relevant to the Veteran's claim. However, in total the staff physician ascribed OSA to non-service connected issues, such as obesity and genetics. The Board notes that the September 2009 VA opinion stated that asthma "may at least as likely as not cause an acute aggravation of his obstructive sleep apnea but not permanently." However, this is a conclusory statement with no supporting evidence of record whatsoever and, additionally, used the wrong standard by including the word "permanently." Such an opinion is entitled to low probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). An adequate medical report must rest on correct facts and reasoned medical judgment to inform the Board on a medical question and facilitate the Board's consideration and weighing of the report against any contrary reports. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding, in the context of weighing one medical opinion with another, that "[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion . . . that contributes probative value to a medical opinion"). The August 2013 VA opinion is entitled to more probative weight and the very detailed VHA opinion is entitled to the most probative weight of the opinions of record. The VHA and the August 2013 VA opinion together are probative as to the Veteran's claims of service-connection for sleep apnea, as the examiner and the staff physician, had knowledge of the Veteran's medical history and record and discussed the pertinent facts, extensively reported the Veteran's medical history, and provided a conclusion in medical opinions based on sufficient facts and data. Therefore, these opinions are entitled to significant weight. Accordingly, the opinions are of greater probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). As such, while the Board has considered the September 2009 opinion, it does not outweigh the more probative August 2013 VA medical opinion and the most probative VHA opinion. The Board need not address whether an acute exacerbation causes additional impairment of earning capacity to meet the definition of disability held in Allen. The Veteran himself has made statements to the effect that his asthma caused or aggravated his sleep apnea. The Board acknowledges that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability subject or symptoms subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran is competent to describe his symptoms, such as daytime tiredness and gasping for air. However, the Board finds that the most probative evidence of record demonstrates that the Veteran's sleep apnea is not secondary to service. Although the Veteran is competent to report his symptoms of sleep apnea, the Board finds that he is not competent to provide an opinion regarding the etiology of his current sleep apnea. See Layno, 6 Vet. App. at 470. Therefore, the Veteran's lay statements carry little probative weight and are outweighed by the medical opinions of record. Accordingly, the Veteran's lay statements in this regard are not competent or probative evidence supporting his claim. See Jandreau, 492 F.3d at 1376-77. Although the Veteran may feel that his sleep apnea symptoms are due to his asthma condition, there is no objective evidence to relate the two conditions. Based on the forgoing reasons, the Board finds that a preponderance of the evidence is against the claim of service connection for the Veteran's sleep apnea on a secondary basis, and the benefit of the doubt doctrine does not apply. Although the JMR did not suggest issues with the prior February 2017 Board decision's analysis of direct service-connection, for completeness the Board will again address that theory of entitlement. The Veteran's service treatment records do not note OSA or notations of difficulty sleeping, snoring, excessive daytime sleepiness, witnessed apneas, or any facial or upper airway injuries. In an undated Report of Medical History at separation, the Veteran denied frequent trouble sleeping and there are no other listed symptoms of sleep apnea or disturbance. A September 2002 Report of Medical Examination likewise is not suggestive of OSA. A December 2006 VA primary care note reported that the Veteran had complaints of "frequent . . . feelings of not being able to breath[sic] at night" for about five weeks. The Veteran was found to have moderate OSA in April 2007 after a sleep study in March 2007, approximately four years after service. The Veteran's statements regarding his sleep apnea note 2007 diagnoses after sleep apnea symptoms, but with no onset date given. The Veteran and his representatives have not claimed that sleep apnea emerged in service and the evidence does not suggest that sleep apnea emerged until many years after service. A September 2009 VA examination and an August 2013 VA opinion noted it was less likely than not (less than 50 percent probability) that an event, injury, or disease in service caused sleep apnea. The VHA noted there was a "zero percent chance" service caused OSA for reasons explained above. There is no other relevant evidence of record that tends to establish direct service connection. Therefore, there is no probative evidence of record at this time to establish sleep apnea is directly related to service. The benefit of the doctrine does not apply and the claim must be denied. ORDER Entitlement to service connection for sleep apnea, to include as secondary to service-connected disability, is denied. ____________________________________________ J. W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs