Citation Nr: 1751729 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 13-34 010 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for obstructive sleep apnea (OSA), claimed as due to exposure to hazardous gases during service. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran, who is the appellant, had active service in the U.S. Marine Corps from December 1965 to March 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. During the course of the appeal, jurisdiction was transferred to the RO in Muskogee, Oklahoma. In June 2015, the Board remanded the appeal for verification of alleged exposure to hazardous gas during service, additional treatment records relating to the diagnosis and treatment of OSA, a VA examination with a medical opinion addressing the likelihood that OSA is related to service, and subsequent readjudication of the appeal. Pursuant to the Board's remand directives, the Agency of Original Jurisdiction attempted to verify alleged exposure to hazardous gases during service and received negative responses. Additional private and VA treatment records were obtained and added to the record, including records from the medical provider that diagnosed sleep apnea in 2001. In June 2015, a VA examination was provided, and a medical opinion was obtained. In consideration of the foregoing, the Board finds that there has been compliance with the prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). FINDINGS OF FACT 1. A facial injury involving the nose and various respiratory illnesses occurred during service. 2. No sleep apnea symptoms were manifested during service. 3. The Veteran was not exposed to hazardous gases during service. 4. OSA was manifested many years after service and is not causally or etiologically related to service. CONCLUSION OF LAW The criteria for service connection for OSA, claimed as due to exposure to hazardous gases, are not met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice should be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In the December 2009 notice letter sent prior to the initial denial of the claim, the RO advised the Veteran of what the evidence must show to establish entitlement to service-connected compensation benefits, and described the types of information and evidence that the Veteran needed to submit to substantiate the claim. The RO also explained what evidence VA would obtain and make reasonable efforts to obtain on the Veteran's behalf in support of the claim. The RO further informed the Veteran how VA determines the disability rating and effective date once service connection is established. In consideration of the foregoing, the Board finds that the VCAA notice requirements were fully satisfied prior to the initial denial of the claim, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. Regarding VA's duty to assist in claims development, the record contains all available evidence pertinent to the appeal. VA has requested records identified throughout the claims process. The Veteran was given appropriate notice of the responsibility to provide VA with any treatment records pertinent to the appeal, and the record contains sufficient evidence to make a decision on the appeal. The complete service treatment records are included in the record, and post-service treatment records identified as relevant to the appeal have been obtained or otherwise submitted. In April 2016, the RO provided the Veteran with a VA examination. The April 2016 VA examination report includes all relevant findings and medical opinions needed to evaluate fairly the appeal. The VA examiner considered an accurate history of the claimed disability as provided through interview of the Veteran and review of the record, as well as the Veteran's subjective complaints as it related to the current symptomatology and its effects on daily life and performed thorough examinations; therefore, the VA examiner had adequate facts and data regarding the history and condition of the claimed disability when providing the medical opinion. For these reasons, the Board finds that the April 2016 VA examination report is adequate, and there is no need for further VA examination or medical opinion. See also Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (holding that for VCAA, where the weight of the evidence has failed to establish an in-service injury, disease, or event, VA is not obligated to provide a medical examination or nexus opinion). The Veteran has not made the RO or the Board aware of any other evidence relevant to the appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed, and no further development is required. Service Connection Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Veteran is currently diagnosed with OSA, which is not a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are not applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service Connection Analysis The Veteran contends that the currently diagnosed OSA was caused by exposure to a hazardous gas, which he believes was mustard gas, during active service. He alleges that he was exposed to a hazardous gas while participating in a training exercise requiring removal of a gas mask while in a "gas chamber" to allow exposure to a toxic gas agent. He also alleges that snoring, which began during service and continued thereafter, was a manifestation of OSA. He seeks service connection on these bases. After review of all the lay and medical evidence of record, the Board finds that a nasal injury and various respiratory problems (i.e., diseases) were manifested during service. The service treatment records, which are complete, show treatment for various respiratory problems throughout service such as bronchitis, pharyngitis, upper respiratory infections, and rhinitis, and "TBC" exposure on a September 1966 chest x-ray. Also, in June and July of 1967, the Veteran received medical treatment for a facial injury and nasal bleeding. At the time of the March 1968 service separation examination, the lungs and chest were clinically evaluated as normal. The service treatment records are absent of complaints of, diagnoses of, or treatment for sleep apnea. Because the service treatment records appear to be complete, and the Veteran received treatment for various respiratory illnesses during service (i.e., rhinitis, pharyngitis, pneumonia) with no report or complaint of sleep apnea symptoms, and the chest and lungs were clinically evaluated as normal at the March 1968 service examination, the Board finds that sleep apnea is a condition that would have ordinarily been recorded during service, if it had been present; therefore, the lay and medical evidence contemporaneous to service is of significant probative value and weighs against a finding of sleep apnea symptoms during service. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (citing Fed. R. Evid. 803(7) for the proposition that the absence of an entry in a record may be evidence against the existence of a fact if it would ordinarily be recorded); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (stating that VA may use silence in the service treatment records as evidence contradictory to a veteran's assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred) (Lance, J., concurring); see also Fed. R. Evid. 803(7) (indicating that the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded). The weight of the lay and medical evidence shows no sleep apnea symptoms or sleep apnea diagnosis until 2001 (i.e., many years after service separation). See October 2009 treatment note ad letter from private sleep medicine medical provider (noting treatment for OSA since 2001); see also September 2009 private treatment note (noting that the Veteran was originally diagnosed with OSA at the facility in 2001). Considered together with the lay and medical evidence contemporaneous to service showing no sleep apnea symptoms, the 33 year period between service separation in 1968 and the onset of sleep apnea symptoms approximately in 2001 is an additional factor that weighs against service incurrence. See Buchanan v. Nicholson, 451 F.3d 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and complaint of a claimed disability is one factor to consider as evidence against a claim of service connection). At the April 2016 VA sleep apnea examination, the Veteran reported that OSA was diagnosed in 1980; however, because the statement is inconsistent with the private medical records showing original diagnosis of OSA in 2001 and the Veteran's own statement on the December 2009 VA Form 21-526 that treatment for sleep apnea began in 2001, it is of no probative value and is outweighed by the other evidence showing initial diagnosis and treatment of OSA in 2001. The weight of the evidence is against finding that sleep apnea, which was manifested many years after service separation, is causally or etiologically related to service, including purported exposure to hazardous gases during service. In this case, there was no hazardous gas exposure during service. After being asked to verify the Veteran's alleged exposure to hazardous gas during service pursuant to Board remand directives, the U.S. Department of Defense and VA Chemical Biological Warfare Exposure System and the Department of Defense provided negative responses. Because the Veteran has alleged that he was exposed to such hazardous gas during chemical warfare infantry training, it is likely that such exposure the Department of Defense or VA would be documented. Because the inquiries for verification of exposure to hazardous gas during service yielded negative responses from the Chemical Biological Warfare Exposure System and the Department of Defense, the Board finds that the Veteran's lay account of exposure to mustard gas or another hazardous gas during service is not credible and is of no probative value. See Bardwell, 24 Vet. App. at 40 (holding that a layperson's assertions indicating exposure to gases or chemicals during service are not sufficient evidence alone to establish that such an event actually occurred during service where service personnel records are negative for such exposure). Also, after interview and examination of the Veteran and review of the record, the April 2016 VA examiner opined that sleep apnea was less likely than not caused by or etiologically related to service. When providing rationale for the medical opinion, the April 2016 VA examiner explained that the Veteran's obesity, consumption of six to eight beers nightly (i.e., because ethanol is a muscle relaxant), and small pharynx were all factors that can contribute to a decrease in the airway opening and, thus, cause snoring. The April 2016 VA examiner relied on the fact that there was no evidence that the Veteran was exposed to a toxic gas during service, noting that the database of exposure to chemical or biological agents showed no such exposure. The April 2016 VA examiner added that there was no evidence-based medical literature or consensus among the medical community at large that proffers a nexus between rhinitis, bronchitis, pharyngitis, pneumonia, "TBC" exposure, facial injury, and the development of OSA many decades later. The April 2016 VA examiner has medical expertise, had adequate information on which to base the medical opinion, and provided adequate rationale based on an accurate medical history and known medical principles. The April 2016 VA examiner inaccurately noted that the Veteran had not reported symptoms consistent with the immediate irritant effects of mustard gas exposure on the eyes and mucous membranes when the Veteran had previously described experiencing exuding mucous and burning eyes immediately after exposure to a hazardous gas during in-service training on a statement accompanying the VA Form 9; however, because the weight of the evidence shows no exposure to hazardous gas during service, including mustard gas, the April 2016 VA medical opinion is not rendered inadequate. Rather, the April 2016 VA medical opinion is of significant probative value. See Bardwell at 40 (holding that a layperson's assertions indicating exposure to gases or chemicals during service are not sufficient evidence alone to establish that such an event actually occurred during service where service personnel records are negative for such exposure). In an October 2009 treatment note, a private medical provider opined that it was possible that exposure to mustard gas during service created injury or damage to the nasopharynx or oropharyngeal area that contributed to the development of snoring and sleep apnea. In a separate October 2009 letter, the private medical provider similarly opined that he suspected that the exposure to mustard gas during service either caused or aggravated the sleep apnea on the basis that potential damage may have been caused to the nasopharynx or oropharynx by mustard gas inhalation. Because the October 2009 private medical opinions used speculative language of mere possibility rather than probability, considering such language in the context of the purported medical opinions, which includes reliance on an inaccurate factual assumption of mustard gas exposure, these purported opinions are of no probative value. See 38 C.F.R. § 3.102 (reasonable doubt does not include resort to speculation or remote possibility).Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (medical evidence merely indicating that a claimed disorder "may or may not" be related to service is too speculative to establish any such relationship); Warren v. Brown, 6 Vet. App. 4, 6 (1993) (stating that a physician's statement framed in terms such as "may" or "could" is not probative); Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (holding that evidence favorable to the veteran's claim that does little more than suggest a possibility that his illnesses might have been caused by service radiation exposure is insufficient to establish service connection). Because the October 2009 purported medical opinions were additionally based on an inaccurate factual premise of in-service exposure to mustard gas, for this reason they are of also of no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative); Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) ("If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely") (citing Reonal)). The Board has also considered the 2007 medical article pertaining to mustard gas exposed veterans with complaint of respiratory sleep problems; however, because the weight of the evidence shows no exposure to mustard gas during service for this Veteran, the medical article is of no probative value. There is lay evidence of snoring during and since service of record; however, snoring alone, without apneic episodes, is not sufficient to establish the presence of OSA during and since service. See Dorland's Illustrated Medical Dictionary 115 (30th ed. 2003) (defining apnea as cessation of breathing; defining obstructive sleep apnea as sleep apnea resulting from collapse or obstruction of the airway with the inhibition of muscle tone that occurs during rapid eye movement (REM) sleep and seen primarily in middle-aged obese individuals with a male predominance). Thus, the lay evidence of snoring during and since service is of minimal probative value. Although the Veteran has asserted that sleep apnea is causally related service, he is a lay person and, under the specific facts of this case, does not have the requisite medical training or credentials to be able to render an opinion regarding the cause of his sleep apnea. The etiology of the Veteran's sleep apnea is a complex medical etiological question dealing with the origin and progression of the respiratory system; sleep apnea is a disorder diagnosed primarily on symptoms, clinical findings and physiological testing; and would require knowledge of the origin and progression of diseases affecting the respiratory system. Thus, while the Veteran is competent to relate respiratory symptoms that he experienced at any time, he is not competent to opine on whether there is a link between sleep apnea, symptoms of which were manifested several years after service, and active service because such opinions require specific medical knowledge and training. For these reasons, the Veteran's unsupported lay assertion that sleep apnea is related to service is of no probative value. For these reasons, the Board find that the weight of the evidence is against a finding that OSA had its onset during service or was caused by active service. In consideration of the foregoing, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the appeal of service connection for OSA; consequently, the appeal must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for OSA, claimed as due to exposure to hazardous gases during service, is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs