Citation Nr: 1752335	
Decision Date: 11/15/17    Archive Date: 11/22/17

DOCKET NO.  12-02 162	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for sleep apnea, to include as secondary to maxillary sinusitis.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

K. Cruz, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1982 to September 1997 and from March 2003 to June 2004.

This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

This case was previously before the Board in August 2016, at which time it was remanded for further development.  As the requested development has been completed, no further action to ensure compliance with the remand directive is required.  Stegall v. West, 11 Vet. App. 268 (1998).


FINDINGS OF FACT

The weight of the evidence is against a finding that the Veteran's sleep apnea was incurred during his active service or was caused or aggravated by maxillary sinusitis.


CONCLUSION OF LAW

The criteria for service connection for sleep apnea, to include as secondary to maxillary sinusitis, have not been met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duty to Notify and Assist

VA has a duty to provide claimants with notice and assistance in substantiating a claim. 

The VA provided the Veteran with a notice letter in July 2010.

Concerning the duty to assist, all identified, pertinent treatment records have been obtained and considered.  The Veteran was afforded VA examinations in October 2010 and August 2016.

In a September 2017 brief, the Veteran's representative objected to the qualifications of the examiner that conducted the July 2016 examination as she was a physician's assistant and not a physician.  Therefore, the Board will address this issue.  Rizzo v. Shinseki, 580 F.3d 1288, 1291-92 (Fed.Cir. 2008).

The Veteran's representative contends that because the Board's remand order for an addendum opinion by "the conducting examiner of the October 6, 2010 VA examination (VAE) or a suitable replacement," the examination by a physician's assistant did not comply with the remand order and it should have been referred to an appropriate physician, such as a neurologist.  See 9/18/2017 Appellate Brief.

The representative's argument that the Veteran is entitled to an examination by a licensed physician with a particular specialty is without basis.  The regulations specifically provide that "competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions."  38 C.F.R. § 3.159 (a)(1).  The United States Court of Appeals for Veterans Claims (CAVC) has explicitly rejected the argument that this regulation should be interpreted to require VA to obtain an opinion from a physician rather than a nurse practitioner.  Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) ("We hold that VA may satisfy its duty to assist by providing a medical examination conducted by one able to provide 'competent medical evidence' under § 3.159(a)(1)...here, a nurse practitioner.").  As a licensed physician's assistant, the VA examiner was presumably qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Cox, 20 Vet. App. at 569.  Even if the Board were to accept the Veteran's suggestion that a licensed physician would have been more ideally suited to provide an opinion in this case, VA is not required to obtain an opinion from the most qualified, ideally educated examiner available.  Id.

The Board finds that the VA examiner is qualified, as no evidence has been submitted to undermine her actual qualifications. 

With regard to the contention that the Board had suggested that a physician conduct the examination, it is acknowledged that a Board remand confers upon the Veteran the right to compliance with that order.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  However, the qualification of "suitable replacement" does not strictly imply a physician.  Nonetheless, even if the Board did intend its directions to be for a physician, only substantial compliance, rather than strict compliance, is required.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand).  Here, the Board finds that a particular specialist was not ordered to provide the opinion, and as noted, the fact that a physician's assistant provided the opinion is considered in this case to be at least substantial compliance, as there has been no showing that the examiner lacked the requisite medical training to provide the opinion.

For the above reasons, the VA examination report is found to be adequate for the purpose of rendering a decision on appeal.  38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303 (2007).  Accordingly, the Board will proceed to the merits of the appeal.

Principles of Service Connection

Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  All three elements must be established by competent and credible evidence in order that service connection may be granted.

A disability which is proximately due to or the result of a service-connected injury or disease shall be service connected.  38 C.F.R. § 3.310.  Further, a disability which is aggravated by a service-connected disorder may be service connected to the degree that the aggravation is shown.  Allen v. Brown, 7 Vet. App. 439 (1995).  In order to establish entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2016); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990).

Facts and Analysis

The Veteran contends that his sleep apnea is due to his maxillary sinusitis.

Service treatment records (STRs) are negative for complaints or treatment of sleep apnea.  The Veteran was not found to have sleeping problems or complaints in reports of medical examination in July 1988 and September 1994.  A report of medical history from September 1994 is also absent for sleep apnea.  Additionally, the Veteran has not stated that his disability began in-service.  7/8/1998 STR-Medical (4/83-5/04), at 22-27.

In January 2010, the Veteran was screened for a sleep study and reported loud snoring and periods of sleep apnea.  In February 2010, he underwent an overnight unattended sleep study at home.  Indications for the sleep study included witnessed snoring and apnea, excessive daytime sleepiness, Epworth sleepiness scale of fourteen, and obesity.  The impression was mild obstructive sleep apnea and mild nocturnal hypoxemia.  10/21/2010 CAPRI, at 5, 8-9.

The Veteran was afforded a VA examination in October 2010.  The examiner noted that the Veteran thought that his sleep apnea was caused by his sinus condition.  He had a positive sleep study in February 2010 and was placed on CPAP.  The examiner determined that his sleep apnea was less likely as not caused by or a result of his sinus disability.  The examiner noted that the disability was discussed with a pulmonary doctor.  It was explained that his increased body mass index was the most significant major risk factor for the development of sleep apnea.  It was also noted that following his most recent ear, nose and throat (ENT) surgery in August 2010 and on his last follow-up in ENT in October 2010, his bilateral nasal passages were clear without crusting.  Bilateral ethmoid cells were clear, no purulence, and nasal passages were clear.  There was no evidence of any significant obstruction following the surgery.  Additionally, there was no evidence that his sinus disability had any relationship to his obstructive sleep apnea in view of the above.  10/6/2010 VA Examination.

In July 2016, the Veteran underwent another VA examination.  The examiner determined that sleep apnea was less likely caused or aggravated beyond its natural progression by maxillary sinusitis.  It was explained that medical literature, including UpToDate, had no information that maxillary sinusitis caused sleep apnea.  Additionally, review of the Veteran's current medical records and multiple medical literature, including UpToDate, had no information that the sleep apnea was aggravated by maxillary sinusitis.  The examiner included relevant medical records and medical literature.  8/31/2016 C&P Examination.

Based on the above, the Board finds that based on the competent evidence of record, a finding of service connection for sleep apnea, to include as secondary to maxillary sinusitis is not warranted.

As noted above, the Veteran stated that he believed his sinusitis caused his sleep apnea.  He is competent to offer lay evidence regarding his symptoms.  Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007; Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms).  However, in order to establish the third element of service connection, a link between what he experienced in service or his maxillary sinusitis and his obstructive sleep apnea must be established by a preponderance of the evidence.  Here, the question of a relationship between sinusitis and sleep apnea involves complex medical factors beyond the competence of a lay person and, as such, his opinions as to nexus hold no probative value.

The probative evidence shows that the Veteran's sleep apnea is not directly related to service.  He was not diagnosed with sleep apnea until February 2010.  That is about six years after separation from service.  He also never contended that his sleep apnea was directly related to service.  Additionally, there is no medical evidence or medical opinion to indicate a link directly to service and no evidence of continuity of symptomatology dating back to service.

The probative evidence also shows that the Veteran's sleep apnea is not secondary to maxillary sinusitis.  In this regard, the Veteran was afforded two VA examinations to resolve this issue and the examiners provided negative nexus opinions.  The Veteran's representative asserted that the July 2016 examiner provided extensive citation of medical literature, but failed to elaborate as to how the literature related to the Veteran's sleep apnea.  However, the record shows the medical opinion was predicated on a full reading of the Veteran's claims file and outside medical literature.  Additionally, the VA examiner provided adequate rationale for the opinion stated.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed).  Therefore, the Board finds the July 2016 opinion is sufficient and adequate for purposes of determining service connection.  38 C.F.R. § 3.159 (c)(4); Barr v Nicholson, 21 Vet. App. 303 (2007).

In light of the foregoing, the Board concludes that the preponderance of the evidence is against a finding of service connection for a sleep apnea disability, to include as secondary to maxillary sinusitis.  For all the above reasons, the preponderance of the evidence is against the claim and the benefit-of-the-doubt standard of proof does not apply.  38 U.S.C.A. § 5107 (b).



ORDER

Service connection for sleep apnea, to include as secondary to maxillary sinusitis is denied.




____________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs