Citation Nr: 1754610 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 11-31 334 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for obstructive sleep apnea, to include as secondary to a service-connected disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. Jones III, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from September 1969 to April 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal of an August 2009 rating decision of the Nashville, Tennessee, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified at an April 2013 hearing before the undersigned VLJ. The Board notes that J.S., who represented the Veteran at the hearing, characterized himself at the hearing as working for the Tennessee Department of Veterans Affairs. However, both representative appointment forms in the record appoint The American Legion as representative. The Board remanded the claim for further development in April 2014. In accordance with the Board's instructions, the RO obtained a medical opinion in June 2014 and issued a Supplemental Statement of the Case (SSOC) in September 2014. The Veteran's representative requested a second remand in June 2016. The Board remanded the claim for an addendum opinion in July 2016, which was obtained in September 2016. FINDINGS OF FACT 1. Obstructive sleep apnea did not manifest during service and was not caused by any in-service disease, injury, or event during service. 2. Obstructive sleep apnea is not due to, the result of, or otherwise aggravated by a service-connected disability, including diabetes mellitus. 3. Obesity is not an "intermediate step" between service-connected diabetes mellitus and obstructive sleep apnea because diabetes mellitus is not a proximate cause of the Veteran's obesity. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1101, 1110, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.307, 3.307, 3.310, 3.159 (2017); VAOPGCPREC 1-2017. REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and to Assist VA has a duty to provide notice of the information and evidence necessary to substantiate a claim. 38 U.S.C. § 5103(a) (2012); 38 C.F.R. § 3.159(b) (2014). A standard July 2009 letter satisfied the duty to notify provisions. VA also has a duty to provide assistance to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c). The Veteran's personnel records, service treatment records, VA treatment records, and private medical treatment records have been obtained. The Veteran has not indicated that there are any outstanding records needed to complete the claims file. The Veteran was provided a VA medical examination in June 2014. The report of the examination included a medical opinion. An addendum opinion was obtained in September 2016. This examination and these opinions are sufficient evidence for deciding the claim. The reports are adequate, as they are based upon consideration of the Veteran's prior medical history, they take into consideration the Veteran's lay testimony, they describe the Veteran's disability in sufficient detail so that the Board's evaluation is fully informed, and they contain reasoned explanations. Thus, VA's duty to assist has been met. As noted above, the Board remanded this matter most recently in July 2016. Specifically, the Board (1) directed that an addendum opinion be obtained as to whether the Veteran's service-connected diabetes mellitus caused sleep apnea, either directly or with obesity as an "intermediate step," and (2) required that the Veteran be furnished with an SSOC. A review of the record shows that a conforming addendum opinion was rendered in September 2016 and the SSOC was sent to the Veteran the same month. As the requested development has been completed, the case may move forward without prejudice to the Veteran. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service connection for obstructive sleep apnea The Veteran seeks service connection for obstructive sleep apnea (OSA). He asserts that his sleep apnea is directly service connected. He also asserts secondary service connection: that sleep apnea is caused or aggravated by his service-connected diabetes mellitus or, in the alternative, that obesity is an "intermediate step" between service-connected diabetes and sleep apnea, such that diabetes proximately caused sleep apnea. 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). Service connection may also be awarded for any disability which is proximately due to or the result of, or is otherwise aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. Direct Service Connection The first element of direct service connection is a current disability. VA treatment notes show a consistent diagnosis of OSA since July 2008, with use of a CPAP machine for most of that time. The current disability requirement is therefore met. The second element of direct service connection is an in-service disease or injury. The Veteran's service treatment records do not show any complaints, treatment, or diagnosis of OSA. His separation examination contained no mention of breathing or sleeping difficulties. The first indication of breathing trouble in the record comes from 15 years after service-a 1986 pulmonary function test showing mild airway obstruction. OSA was not definitively diagnosed until 2008. In June 2014, a VA physician reviewed the Veteran's file, examined the Veteran, and considered the Veteran's lay statements about sleep apnea. The examiner opined that sleep apnea was less likely than not incurred in or caused by an in-service injury, event, or illness. He based his opinion on the Veteran's statement that he did not snore in service and on his observation that obesity is the strongest risk factor for OSA. The examiner noted that the Veteran increased in weight from 140 pounds at discharge to 192 pounds at the time he was diagnosed with OSA. The Board must weigh the above-mentioned evidence along with the Veteran's lay statements about his sleep difficulties in service. Competent lay evidence may be 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)(2). Although the Veteran is not a medical professional and is therefore not competent to diagnose a complex respiratory disease like OSA in himself, he is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran states that he experienced sleep difficulties during service but did not report them. He has stated several possible reasons for the sleep problems, including exposure to chemical contaminants and the noise and commotion of bombardment, which caused him to feel "wired" and to wake up frequently during the night, even after he was transferred to a calmer environment. He also points to his 1986 pulmonary function testing and his prescribed CPAP breathing machine as evidence of in-service sleep problems. Regarding exposure to chemical contaminants, because the Veteran served in Vietnam within the year range of 1962 to 1975, he is presumed to have been exposed to herbicide agents. 38 C.F.R. § 3.307(a)(6)(iii). Further, if he develops any of the diseases listed in VA regulation 38 C.F.R. 3.309(e), those disease will be service-connected without further showing of in-service injury or chronicity of symptoms. Unfortunately, sleep apnea is not one of the diseases listed at 38 C.F.R. 3.309(e). The Veteran's exposure to chemical contaminants therefore does not presumptively link his claimed disorder to herbicide exposure. Regarding the Veteran's testimony about feeling "wired" and losing sleep during service as a cause of sleep apnea, the Board finds the Veteran quite competent to describe his experiences in service. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting that witnesses are competent to provide evidence of which they have personal knowledge). However, the Veteran is not competent to make the medical diagnosis of obstructive sleep apnea based on his experiences. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (holding that lay evidence is competent to establish a diagnosis in limited situations not relevant here). Because the June 2014 examiner is competent to assess the medical origin of the Veteran's sleep apnea, and because he considered the Veteran's medical history and lay statements and provided reasoned basis for his opinion, his opinion has greater probative weight than the Veteran's lay statements. Because the Veteran's sleep apnea was less likely than not incurred in or caused by an in-service event, direct service connection is not established. Secondary Service Connection The Veteran contends through counsel that if his sleep apnea is not directly service connected, then it is caused or aggravated by service-connected diabetes mellitus or, in the alternative, that obesity is an "intermediate step" between service-connected diabetes and sleep apnea, such that diabetes proximately caused sleep apnea. A disability that is proximately due to or the result of a service-connected disease or injury is eligible for service connection. In addition, any increase in severity of a nonservice-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, will be service connected. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran has a current diagnosis of sleep apnea and a service-connected disability of diabetes mellitus. Regarding a nexus between the two, the September 2016 VA examiner reviewed the Veteran's file and found no medical evidence that OSA was caused by or aggravated by the Veteran's diabetes. As the Veteran is not competent to opine on matters requiring medical training, the only competent evidence regarding the nexus comes from the September 2016 VA examiner. This opinion has high probative weight given the examiner's familiarity with the claims file and medical training. Obesity as an "Intermediate Step" Although the VA does not consider obesity a disease in itself, obesity can be an "intermediate step" between a service-connected disability and a current disability if proximate causation is shown. Here, proximate causation would be established if (1) diabetes mellitus caused the Veteran to become obese; (2) obesity was a substantial factor in causing OSA; and (3) OSA would not have occurred but for the obesity that was caused by diabetes. See VAOPGCPREC 1-2017 (January 6, 2017). With regard to the second criterion, the June 2014 examiner explained the risk factors for OSA, noting that obesity is the strongest risk factor. In particular, the examiner showed a correlation between the Veteran's weight gain over time and his diagnosis of OSA. It is therefore likely that obesity was a substantial factor in causing the Veteran's sleep apnea. Regarding the requirement that diabetes cause obesity-in the first and third criteria-the September 2016 examiner opined that "[t]here is no medical evidence that the Veteran's weight gain/obesity was caused by his diabetes[.]" To support this opinion, the examiner noted that the Veteran's weight had fluctuated between 191 pounds and 221 pounds with no change in the status of his diabetes during any of the fluctuations. Because this opinion is factually accurate and provides sound reasoning for its conclusion, the Board finds it highly probative. Weighing all evidence in the record, including the evidence described above, the Board finds the preponderance of the evidence to be against the service connection claim on a secondary basis for OSA, either with a direct nexus to diabetes or with the "intermediate step" of obesity. Conclusion The preponderance of the evidence is against the award of service connection for OSA on any basis, and the claim must be denied. As a preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). ORDER Service connection for obstructive sleep apnea is denied. ____________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs