Citation Nr: 1756894 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 09-15 276A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD H. Daus, Associate Counsel INTRODUCTION The Veteran had qualifying service from August 1969 to March 1971 and June 1971 to January 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. In May 2011, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. In October 2011, September 2014, June 2016, and April 2017, the Board remanded for further development. Substantial compliance has been achieved. See Stegall v. West, 11 Vet. App. 268, 271 (1998). For the third time, the issue of entitlement to dependency benefits was raised by the record in a July 2015 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). As such, the Board still does not have jurisdiction and must refer it to the AOJ for appropriate action. See 38 C.F.R. § 19.9(b) (2017); June 2016 Board decision/remand; April 2017 Board remand. FINDING OF FACT The Veteran's OSA is not etiologically related to service, nor is it related to a service-connected disability. CONCLUSION OF LAW The criteria for service connection for OSA have not been met. See 38 U.S.C. §§ 1101, 1110, 1131, 1137, 1154(a), 5107 (2012); 38 C.F.R. §§ 3.303, 3.102, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran generally contends that his OSA is etiologically related to service, including to his service-connected hypertension. As such, the disability requires analysis under the direct and secondary theories of service connection. Direct service connection requires evidence showing: (1) a current disability; (2) an in-service event or injury; and (3) an etiological relationship between the current disability and the in-service event or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Secondary service connection is warranted when a current disability was proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310. Based on the evidence below, service connection is not warranted under either theory. Service treatment records (STRs) are silent for OSA symptoms. However, the Veteran contended that in-service symptoms of difficulty breathing, tiredness, sleep disturbances, and nasal congestion were misdiagnosed as asthma and sinus problems. See June 2008 Statement (contended that he was told he had a sinus problem in service); May 2009 Form 9 (contended difficulty breathing and sleeping since separation; also contended breathing problems misdiagnosed as asthma because he stopped asthma medication after beginning CPAP); May 2011 testimony (contended in-service symptoms of tiredness, sleep disturbances, and nasal congestion, which were misdiagnosed as asthma, but resolved upon beginning CPAP); November 2017 Correspondence (contended no sleep apnea until October 1984 motor vehicle accident). First, the Board notes that the STRs are silent for documented difficulty breathing, and, seemingly to the contrary, a July 1981 record indicated no frequent respiratory problems. Further, the STRs are silent for a diagnosis of asthma, and, seemingly to the contrary, a November 1974 record indicated that the Veteran worked in a dusty environment. Second, the only STR documenting tiredness was in the context of treatment for a cold. See February 1979 record (looked fatigued, but stable, after having a cold for 48 hours). Third, the STRs are silent for documented sleep disturbances. Fourth, the STRs document nasal congestion, but only in the context of treatment for a cold or flu. See STRs dated January 1985, October 1985, March 1986, and September 1987. Despite the aforementioned, the Veteran is competent to report these symptoms, as they are lay-observable; however, he does not possess the required medical background to competently render either a diagnosis or an etiological opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). As such, this claim turns on whether the preponderance of the competent evidence of record weighs in favor of a finding that the OSA is etiologically related to service and/or service-connected hypertension. The Veteran separated from service in January 1990 and was first diagnosed with OSA in August 1999, over 9 years later. Although the Veteran contends that he was issued a CPAP before then, OSA testing/treatment prior to August 1999 is not corroborated by the evidence currently of record. See August 1999 treatment record from Topeka VAMC (preliminary sleep report in August 1999 with follow-up CPAP titration studies); May 2007 Statement (contended CPAP used since 1996); May 2009 Form 9 (contended CPAP issued in 1994); May 2011 testimony (contended OSA diagnosed in 1993 or 1994). The current record lacks an etiological opinion from a private provider. However, the Veteran was afforded etiological opinions from VA providers. See August 2015 addendum opinion; August 2016 addendum opinion; May 2017 addendum opinion. The Board notes that the August 2015 opinion was previously found inadequate for failure to opine regarding secondary service connection; however, the direct service connection analysis was adequate by itself. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); June 2016 and April 2017 Board remands. Similarly, the August 2016 opinion was previously found inadequate for failure to opine regarding whether the OSA was aggravated by the hypertension; however, the proximal causation analysis was adequate by itself. Id. To complete the secondary service connection development, the AOJ obtained a May 2017 opinion, which discussed proximal causation and aggravation; this opinion is adequate, as it considered the Veteran's lay statements, was based on accurate factual premises, and contained sufficient rationale to support conclusions. See Barr, 21 Vet. App. at 307. The August 2015 examiner found no etiological relationship between the OSA and the Veteran's service, based on the lack of in-service symptoms and the substantial gap between separation and diagnosis. The August 2016 examiner opined that the OSA was not proximately caused by the hypertension, based on UpToDate's information that hypertension does not cause, or even increase the risk of, OSA. The May 2017 examiner opined that the OSA was not proximately caused by or aggravated by the service-connected hypertension; the examiner reiterated that, per UpToDate, hypertension does not cause, or even increase the risk of, OSA and that OSA is a structural issue with soft tissue, not affected by hypertension in any way. In sum, as the only competent evidence weighs against an etiological relationship, service connection is not warranted on either a direct or secondary basis. ORDER Entitlement to service connection for OSA, to include as secondary to hypertension, is denied. ____________________________________________ L.M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs