Citation Nr: 1801380	
Decision Date: 01/09/18    Archive Date: 01/19/18

DOCKET NO.  13-34 280A	)	DATE
	)
	)

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


THE ISSUES

1. Entitlement to service connection for a bilateral hearing loss.

2. Entitlement to service connection for tinnitus.

3. Entitlement to service connection for hypertension.

4. Entitlement to service connection for chronic sinusitis

5. Entitlement to service connection for sleep apnea. 


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States




ATTORNEY FOR THE BOARD

Robert A. Elliott II, Associate Counsel


INTRODUCTION

The Veteran served on active duty from July 1965 to June 1968. 

These matters come to the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.


FINDINGS OF FACT

1.  There is at least an approximate balance of positive and negative evidence as to whether the Veteran has a bilateral hearing loss disability as a result of active service.

2.  There is at least an approximate balance of positive and negative evidence as to whether the Veteran has tinnitus as a result of active service.

3.  Current hypertension is not caused or aggravated by an event, injury, or disease in active service, nor was it manifested within his first year following service.

4. Current chronic sinusitis is not caused or aggravated by an event, injury, or disease in active service.

5. Current sleep apnea is not caused or aggravated by an event, injury, or disease in active service.



CONCLUSIONS OF LAW

1.  The criteria for service connection for bilateral hearing loss have been met.  38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2017).

2.  The criteria for service connection for tinnitus have been met.  38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. § 3.303 (2017).

3.  The criteria for service connection for hypertension have not been met.  38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).

4.  The criteria for service connection for chronic sinusitis have not been met.  38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. § 3.303(2017).

5.  The criteria for service connection for sleep apnea have not been met.  38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. § 3.303 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duty to Notify and Assist

The Veteran has not raised any issues with the duty to notify or duty to assist.  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).

II. Service Connection

In order to obtain service connection the evidence must show: (1) the existence of a present disability; (2) 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, i.e., a "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

Where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and sensorineural hearing loss becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017).

Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. 

With respect to continuity of symptomatology, the Court has held that, under 38 C.F.R. §3.303(b), the theory of continuity of symptomatology is an alternative route to establish service connection for specific chronic diseases, including bilateral hearing loss, tinnitus, and hypertension,  and can only be used in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  As an organic disease of the nervous system, sensorineural hearing loss is considered a chronic disease under 38 C.F.R. § 3.309(a), as is hypertension.  

The competence, credibility, and probative (relative) weight of evidence, including lay evidence must be assessed.  See generally 38 U.S.C.A. § 1154(a).  Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the unique and readily identifiable features of a medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

A. Bilateral Hearing Loss and Tinnitus

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.  Further, an examination for hearing impairment must meet the four requirements of 38 C.F.R. § 4.85(a).  It must be conducted by a state-licensed audiologist, the examination must include a controlled speech discrimination test (Maryland CNC), the examination must include a puretone audiometry test, and the examination must be conducted without the use of hearing aids.

"[W]hen audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service."  Hensley v. Brown, 5 Vet. App. 155, 160 (1993).  The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  Id. at 157.

The Veteran contends that his bilateral hearing loss and tinnitus are a result of acoustic trauma sustained during active duty service.  For the reasons described below, the Board finds all reasonable doubt in the Veteran's favor and finds that service connection for bilateral hearing loss and tinnitus is warranted.

There is an October 2010 private diagnosis of tinnitus, but the subsequent July 2011 VA examination included the Veteran's statement regarding no current complaints of tinnitus.  

With regard to the first element of direct service connection, current disability, the Veteran has a current diagnosis of a bilateral hearing loss disability as defined by 38 C.F.R. § 3.385.  See July 2011 VA Audio Examination.  Additionally, affording the Veteran all reasonable doubt, there is a diagnosis of tinnitus during the appeal period.  

With regard to the second element of direct service connection, in-service incurrence or aggravation of a disease or injury, the evidence demonstrates that the Veteran was an infantry radio mechanic during his active duty service.  His service records indicate that associated duties would place him in areas where there was hazardous noise.  Thus, in-service acoustic trauma to the ears has been conceded.  

With regard to the third element of direct service connection, nexus, the Board finds that the evidence is in relative equipoise as there are both positive and negative opinions addressing the etiology of his bilateral hearing loss and tinnitus.  

The Veteran's service treatment records are silent for any complaints, treatment, or diagnosis of bilateral hearing loss during service.

In a private October 2010 opinion, Dr. P.Y. opined that it is more likely than not that the Veteran's bilateral hearing loss and bilateral intermittent tinnitus are directly and causally related to the acoustic trauma discussed herein thus it is more likely than not that same is directly and causally related to his military service.  

In July 2011, the Veteran attended a VA audio examination.  He reported that he was not provided with hearing protection and was exposed to high levels of noise from high frequency radio, M60 tank engines, generators, small arms, and tank and artillery fire throughout his military career.  He further noted that he was exposed to high levels of noise following separation during his work as a carpenter but that he used dual hearing protection.  Upon examination, puretone thresholds for the right and left ear, in decibels, were as follows:




HERTZ



500 
1000
2000
3000
4000
RIGHT
30
25
35
65
75









HERTZ



500
1000
2000
3000
4000
LEFT
30
30
30
55
60







Further, the examiner noted a Maryland CNC Test score of 96 percent for the right ear and 94 percent for the left ear.  The diagnosis was mild to severe bilateral sensorineural hearing loss.  However, when asked to provide an opinion as to whether the Veteran's current hearing loss is less likely as not caused by or a result of exposure to high levels of noise on active duty, the examiner provided conflicting opinions. 

In November 2016, as required by the March 2016 Board remand, an addendum medical opinion was provided.  The examiner opined that the Veteran's current bilateral hearing loss is less likely as not caused by or a result of exposure to high levels of noise on active duty.  The rationale provided, stated in pertinent part that review of the Veteran's Claim file revealed normal hearing bilaterally upon entrance and separation from military service to calibrated audiometric testing.  Additionally, there was no significant in-service threshold shift noted at any frequency (500-4000Hz).  SMRs and STRs were silent for hearing loss complaint.  The Institute of Medicine Study (2005) "Noise and Military Service: Implications for Hearing Loss and Tinnitus" states: "There is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure.  Although the definitive studies to address    this issue have not been performed, based on the anatomical and physiological    data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur."  Therefore, based on the objective evidence (audiograms), there is no evidence on which to conclude that the Veteran's current hearing loss was caused by or a result of his military service, including noise exposure. 

The Board notes that the positive and negative opinions of record are both competent and credible.  It affords them equal probative weight.  As such, the Veteran has conceded noise exposure, a currently diagnosed bilateral hearing loss disability for VA benefit purposes, tinnitus diagnosed during the appeal period, and there is competent and credible testimony indicating ongoing hearing problems since service.  As such, all reasonable doubt is resolved in the Veteran's favor, and service connection for bilateral hearing loss and associated tinnitus is granted.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

B. Hypertension

For VA disability purposes, "the term hypertension means that the diastolic blood pressure is predominately 90mm or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm or greater with a diastolic blood pressure of less than 90mm."  38 C.F.R. § 4.104, Diagnostic Code 7101 Note (1).  In addition, hypertension or isolated systolic hypertension "must be confirmed by readings taken two or more times on at least three different days."  Id.  

The Veteran contends that his hypertension is a result of his active duty service.  For the reasons described below, the Board finds that service connection for hypertension is not warranted on either a direct or presumptive basis.  

With regard to the first element of service connection, a current disability, the Veteran has a current diagnosis of essential hypertension.  See August 2016 VA hypertension examination.

With regard to the second element of service connection, in service occurrence or aggravation, the Veteran's service treatment records are silent for complaints, treatment, or diagnosis of essential hypertension.  Blood pressure at the time of his separation exam was noted to be 138/80, which is considered normal for VA purposes. 

Various private medical treatment records dated from September 2009 note treatment for hypertension.  In particular, a March 2010 private medical treatment record notes the Veteran's indication that his hypertension has been treated for 40 years.

In an October 2010 letter, Dr. P.Y. stated that the Veteran was diagnosed with hypertension at his exit physical examination, has had a history of continual hypertension since that time and has been on long term continual medication for the same.  Further, he states that the time of diagnosis and continuation of the condition should qualify this condition as service connected.  

In May 2016, the Veteran was sent a duty to assist letter asking to provide names and contact information of any private doctors or hospitals that may have treated him for hypertension.  To date, VA has only received a private doctor's opinion.

In August 2016, the Veteran attended a VA Hypertension DBQ examination.  The examiner diagnosed hypertension as of 2004.  Upon examination, current blood pressure readings were 156/90, 156/90, and 152/92 for an average blood pressure of 154/93.  The examiner noted the Veteran stating a history of diagnosis and treatment for essential hypertension "right after I got out of the military," but was unable to remember when he was diagnosed or the doctor's name that diagnosed him.  The examiner also noted the Veteran's statement that "I can't remember all that, but I was started on Norvasc" just after getting out of service.  The examiner noted that Norvasc was developed in 1986 with commercial sales beginning in 1990-many years following the Veteran's discharge from service. 

The examiner opined that the Veteran's hypertension is not caused by or a result of illness, injury, or event shown in his service treatment records.  The rationale provided states, in pertinent part, in the absence of any medical records, the Veteran's recollection of his diagnosis of and treatment for essential hypertension is not consistent with historical facts (the Veteran states he was started on Norvasc (amlodipine) "right after I got out of the service" even though this medication was not developed until 1986, and not available for sale until 1990).  In the absence of any medical records to support the Veteran's claim, his current essential hypertension is almost certainly a stand-alone entity, neither due to nor aggravated by active military service.  

The examiner reviewed the opinion submitted Dr. P.Y.  Dr. P.Y.'s report is silent regarding review of the Veteran's STR and all evidence of record.  Although the opinion presented appears carefully considered, this examiner is not unable to comment on its validity as neither reference to medical records, nor medical literature, is cited for reference.  Without such reference, Dr. P.Y's opinion remains his personal, professional opinion.  

Regarding Dr. P.Y's statement that "[Veteran] was diagnosed with hypertension at his exit physical examination when he was being discharged from military service;" a review of the Veteran's separation examination dated in June 1968 shows that the Veteran himself specifically denied "high or low blood pressure" at that time.  The Veteran's blood pressure documented at that time was 138/80 (did not meet criteria for hypertension pursuant to38 C.F.R. § 4.104, Diagnostic Code 7101 Note (1)), and the Veteran's STR is silent for diagnosis of or treatment for any chronic disability with regard to hypertension.  It is impossible to know to what "diagnosis" Dr. P.Y is referring without resorting to mere speculation. 

The Board finds that the preponderance of the evidence is against the claim for hypertension.  The August 2016 medical opinion is the most probative evidence of record.  The VA opinion provider is qualified through education, training, and experience to offer medical diagnoses, statements, or opinions.  Moreover, the opinion reflects consideration of the Veteran's history, to include the competing private opinion, and it makes clear the basis for the opinion.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008) ("[A] medical opinion . . . must support its conclusions with an analysis that the Board can consider and weigh against contrary opinions.").  Moreover, the examiner directly addresses the medical opinion of record to the contrary.  Therefore, the Board accords great probative weight to this opinion.

The Board acknowledges the Veteran's contention that based on the current AHA definition for hypertension, his separation exam blood pressure reading would qualify as hypertension.  However, the Board brings attention to 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1) which controls what qualifies as hypertension for VA disability purposes.  Under these requirements, the Veteran's separation examination reading was normal.  Moreover, this was one isolated reading, not two or more readings taken on at least three different days. 

Although hypertension is subject to presumptive service connection; service connection would not be warranted unless the hypertension manifested to a compensable degree within a year of the Veteran's release from active service in 1968, or if he exhibited a continuity of symptomatology since that time.  

In this case, there is no evidence of hypertension manifested to a compensable degree within one year from discharge.  As previously noted, there has been no showing of a continuity of symptomatology.  Moreover, the Board finds that although the Veteran sincerely believes he has been treated for hypertension since his discharge from military service, this is not supported by the most probative evidence of record.  The Veteran is not shown to have any medical expertise and is not competent to opine that he had hypertension beginning in service and continuing since.  To the extent that he is competent to describe what treating clinicians have told him, he has not cited to evidence that shows he was treated for hypertension during and within the year following service.  In fact, the drug for which he said he was prescribed to treat hypertension immediately following service was not available to the public until 1990-many years following service.  Moreover, the Veteran specifically denied any high or low blood pressure at his discharge examination, and there were no notations that he was told he could stay in service and be hospitalized for treatment of his hypertension.  To the extent that the Veteran contends he was treated for hypertension in service, offered hospitalization for treatment, treated for hypertension in his first post-service year, and has had continued treatment since, the Board finds those statements to lack credibility and are unsupported by the most probative evidence of record.  

Ultimately, the weight of the evidence is against finding a continuity of symptoms of hypertension dating back to service or a presumptive period; the August 2016 examiner provided a well-supported opinion that the hypertension was not related to service.  Again, the Board finds that the August 2016 examination findings far outweigh those provided by a private, diagnostic consultant who based his opinion on an inaccurate factual basis (i.e. the Veteran having a diagnosis of hypertension at service separation), and who did not indicate a complete review of the claims file prior to providing his opinion.  

In conclusion, the weight of the evidence is against the claims for service connection for hypertension.  Reasonable doubt does not arise and the claim is denied.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

C. Chronic Sinusitis

The Veteran contends that his chronic sinusitis is a result of his active duty service.

With regard to the first element of service connection, a current disability, the Veteran has a current diagnosis of chronic sinusitis.  See August 2016 VA sinusitis examination.

With regard to the second element of service connection, in service occurrence or aggravation, the Veteran's service treatment records are silent for complaints, treatment, or diagnosis of chronic sinusitis. 

Various private medical treatment records dated from September 2009 note treatment for chronic sinusitis. 

In May 2016, the Veteran was sent a duty to assist letter asking to provide names and contact information of any private doctors or hospitals that may have treated him for chronic sinusitis.  To date, VA has only received a private doctor's opinion.

In an October 2010 letter, Dr. P.Y. stated, in pertinent part, that while playing military recreational football in Germany in 1967, the Veteran sustained a fracture to his nose, which healed unfavorably.  Due to this, the Veteran has developed chronic sinusitis and he opined that more likely than not that the aforementioned is directly and causally related to injury sustained as herein discussed.  It is accordingly more likely than not that same is directly and causally related to the Veteran's military service.  No evidence was cited or rationale given for this opinion.

The Veteran attended an August 2016 Sinusitis, Rhinitis and Other Conditions of the Nose, Throat, Larynx and Pharynx VA DBQ examination.  The examiner diagnosed acute sinusitis as of September 2008.  The examiner opined that chronic sinusitis is not caused by or a result of illness, injury, or event shown in the STRs.  

The rationale provided, in pertinent part, states that although the Veteran was treated for "severe URI" this upper respiratory infection was acute and isolated as evidenced by silence of the remainder of the STRs for continued, chronic treatment.  Specifically, the Veteran's separation examination dated January 1968 is silent for diagnosis of or treatment for chronic disability with regard to chronic sinusitis.  ENT and respiratory physical examination performed at that time was documented as normal.  Also, the Veteran specifically denied" chronic/frequent colds," and specifically denied "sinusitis."  The Veteran's chronic sinusitis diagnosed in 2009 and treated surgically as a stand-alone entity.  The examiner opined that his chronic sinusitis was neither due to, nor aggravated by, active military service or "possible broken nose" in service without radiographic confirmation, or "severe URI" treated on November 1965.  The URI had resolved without residual as evidenced by silence of the remainder of the STRs for continued, chronic treatment.  The examiner also reviewed the opinion submitted by Dr. P.Y.  The examiner noted that Dr. P.Y's report is silent regarding review of the Veteran's STRs and all other evidence of record.  Although the opinion presented appears carefully considered, this examiner is unable to comment on its validity as no medical literature is cited for reference.  Without such reference, Dr. P.Y's opinion remains his personal, professional opinion."

The Board finds that the preponderance of the evidence is against the claim for chronic sinusitis.  The August 2016 medical opinion is the most probative evidence of record.  The VA opinion provider is qualified through education, training, and experience to offer medical diagnoses, statements, or opinions.  Moreover, the opinion reflects consideration of the Veteran's history, to include the competing private opinion, and it makes clear the basis for the opinion.  Nieves-Rodriguez; 22 Vet. App. at 302.  Moreover, the examiner directly addresses the medical opinion of record to the contrary.  Therefore, the Board accords great probative weight to this opinion.

The Board affords the positive, private opinion little probative weight.  Although Dr. P.Y. is competent to provide this opinion, and the Board has no reason to doubt his credibility, his opinion lacks a detailed rationale and it does not appear that he reviewed the entirety of the Veteran's claims file before providing his opinion.  The Board finds that the VA examiner provided a detailed rationale, following review of the evidence of record, and specifically considering his in-service treatment for URI and acute sinusitis.

Finally, although the Veteran has alleged that he has had sinusitis since service, the more probative evidence of record does not support his assertion.  Namely, the Veteran's in-service treatment for sinusitis and URI were noted to be acute instances of those conditions, and he was not formally diagnosed as having chronic sinusitis until 2009-around 45 years since separation.  Although the Veteran is competent to described sinus problems during and since service, he does not have the competence or medical expertise to link his currently diagnosed chronic sinusitis to isolated instances of sinusitis and URIs in service.  Again, the most probative evidence of record is the August 2016 VA examination report finding no causal link between the two.  

In conclusion, the weight of the evidence is against the claims for service connection for chronic sinusitis.  Reasonable doubt does not arise and the claim is denied.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra.

D. Sleep Apnea

The Veteran contends that his sleep apnea is a result of his active duty service.  For the reasons discussed below, the Board finds that the preponderance of the evidence is against his claim.  

With regard to the first element of service connection, a current disability, the Veteran has a current diagnosis of sleep apnea.  See August 2016 VA sleep apnea examination.

With regard to the second element of service connection, in service occurrence or aggravation, the Veteran's service treatment records are silent for complaints, treatment, or diagnosis of sleep apnea. 

Various private medical treatment records dated from September 2009 note treatment for sleep apnea. 

In May 2016, the Veteran was sent a duty to assist letter asking to provide names and contact information of any private doctors or hospitals that may have treated him for sleep apnea.  To date, VA has only received a private doctor's opinion.

In an October 2010 letter, Dr. P.Y. stated, in pertinent part, that while playing military recreational football in Germany in 1967, the Veteran sustained a fracture to his nose, which healed unfavorably.  Due to this, the Veteran has developed sleep apnea and he opined that more likely than not that the aforementioned is directly and causally related to injury sustained as herein discussed.  It is accordingly more likely than not that same is directly and causally related to the Veteran's military service.  No evidence was cited or rationale given for this opinion.

The Veteran attended an August 2016 Sleep Apnea VA DBQ examination.  The examiner diagnosed obstructive sleep apnea as of April 2010.  The examiner opined that sleep apnea is not caused by or a result of illness, injury, or event shown in the STRs.  His rationale included that:
 
 the Veteran's STR's are silent for diagnosis of or treatment for chronic disability with regard to sleep apnea.  There is a significant silent interval between his separation from the military and his subsequent diagnosis of obstructive sleep apnea in April 2000 and via polysomnography.  With regard to the Veteran's stated belief that his "possible broken nose" treated during active military service is the cause of his current obstructive sleep apnea, "old of compensation may not be based on surmise, conjecture, speculation or on employees unsupported belief of causal relation; employee has burden of establishing by way of reliable, procreative and substantial evidence that condition is causally related; burden includes necessity of furnishing medical opinion evidence concerning cause-and-effect relationship based upon proper factual and medical background." Lynn P. Sparks, 84-382, March 14, 1984, ECAB, US Department of Labor.  AMA Guides to the Evaluation of Disease and Injury Causation, 2nd ed. /(edited by) Melhorn, J. Mark, MD, et al. 2014 American Medical Association, Chicago, Illinois.  
 
 Anatomic risk factors include obesity, an oropharynx "crowded" by a short or retracted mandible, a prominent tongue base or tonsils, a rounded head shape and a short neck, a neck circumference > 43 cm, thick lateral pharyngeal walls, or lateral Para pharyngeal fat pads.  Other identified risk factors include postmenopausal status, aging, and alcohol or sedative use.  A family history of sleep apnea is present in 25 to 40% of cases, perhaps reflective of intrinsic ventilator drive or craniofacial structure.  The likelihood of other family members having sleep apnea increases as more family members have it.  http://www.merckmanuals.com/professional/pulmonary_disorders/sleep_apnea/obstructive_sleep_apnea.html
 
 History of deviated septum or surgical repair is not a risk factor for developing obstructive sleep apnea.  A review of the recent medical literature is silent for any mechanism by which deviated septum or surgical repair may cause or aggravate obstructive sleep apnea.  Likewise, neither acute nor sinusitis are risk factors for developing obstructive sleep apnea, nor is there any mechanism by which acute or chronic sinusitis may cause or aggravate obstructive sleep apnea.  "Altered sleep as seen in OSA is overwhelmingly due to obesity."  AMA Guides to the Evaluation of Disease and Injury Causation, 2nd ed./(edited by) Melhorn, J. Mark, et al. 2014, American Medical Association.  The Veteran's obstructive sleep apnea is a stand-alone entity, neither caused by nor aggravated by active military service, deviated septum, or acute or chronic sinusitis.  Dr. P.Y.'s report is silent regarding review of the Veteran's STR and all evidence of record.  Although the opinion presented with regard to "sleep apnea due to sequelae of deviated septum" appears carefully considered, this examiner is unable to comment on its validity as no medical literature is cited for reference.  Without such reference, Dr. P.Y.'s opinion remains his personal, professional opinion."

The Board finds that the preponderance of the evidence is against the claim for sleep apnea.  The August 2016 medical opinion is the most probative evidence of record.  The VA opinion provider is qualified through education, training, and experience to offer medical diagnoses, statements, or opinions.  Moreover, the opinion reflects consideration of the Veteran's history and competing private opinion, and it makes clear the basis for the opinion.  Nieves-Rodriguez; 22 Vet. App. at 302.  Moreover, the examiner directly addresses the medical opinion of record to the contrary.  Therefore, the Board accords great probative weight to this opinion.

The Board has considered the representative's argument that the August 2016 examination was not performed by an examiner with the requisite expertise regarding sleep apnea.  He contends the examination should have been performed by an ENT or pulmonologist.  However, the Veteran requests that the Board consider the opinion of Dr. P.Y. (a "Diagnostic Consultant") as more probative-despite his apparent lack of expertise in pulmonology, otolaryngologist (ENT), or other expertise in sleep impairments.  Nevertheless, the Board finds that August 2016 examiner is certainly competent to provide the requisite opinion related to the etiology of the Veteran's sleep apnea, and he supported his opinion with a detailed consideration of medical reference materials, the Veteran's testimony, and his entire medical history.  Additionally, the VA examiner reached his conclusion following review of the entire claims file and consideration of the record as a whole.  The Board finds that the 2016 opinion far outweighs the private opinion provided in 2010 without consideration of the record as a whole and as including only minimal rationale.  

In conclusion, the weight of the evidence is against the claims for service connection for sleep apnea.  Reasonable doubt does not arise and the claim is denied.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra.


ORDER

Service connection for bilateral hearing loss is granted.

Service connection for tinnitus is granted.

Service connection for hypertension is denied.

Service connection for chronic sinusitis is denied.

Service connection for sleep apnea is denied. 



____________________________________________
H.M. WALKER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs