Citation Nr: 1802971 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 10-49 305 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES Entitlement to service connection for obstructive sleep apnea (OSA). REPRESENTATION Appellant represented by: Ryan Coskrey, Attorney WITNESS AT HEARINGS ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran had active military service from June 1961 to June 1964. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran testified before the undersigned Veterans Law Judge at a November 2011 videoconference hearing. The case was recently remanded in January 2015. In March 2017, the Board remanded the issue of service connection for OSA. There are other matters that are still under review at the RO and are not decided herein. Only the issue of service connection for OSA has been certified for review to the Board at this time. FINDING OF FACT OSA is not attributable to service. CONCLUSION OF LAW OSA was not incurred or aggravated in active service. 38 U.S.C.A. §§ 1101, 1110 (2012); 38 C.F.R. §§ 3.303, 3.304. 3.306 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Under the VCAA, when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159. Here, the Veteran was provided with the relevant notice and information. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim and all appropriate development was undertaken in this case. The Veteran was also afforded a hearing which was adequate. 38 C.F.R. § 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). The Veteran has not alleged any notice or development deficiency during the adjudication of the claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. Service connection may also 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). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. The Veteran's service treatment records (STRs) document that the Veteran was involved in a motor vehicle accident (MVA) during service. He suffered trauma described as a contusion to the left iliac crest area as well as the spine and pelvis. No nasal or facial injury was identified. Although the Veteran subsequently complained of having trouble breathing, this trouble breathing was in reference to throat problems. He underwent a tonsillectomy during service in April 1963 after having tonsillitis. Post-service, in 2003, the Veteran underwent a surgical excision of the submandibular gland (SMG) and septoplasty for a deviated nasal septum. In September 2004, the Veteran reported having snoring, but no apnea, no daytime somnolence, and no morning headaches. A December 2004 nasal endoscopy revealed clear bilateral middle and inferior meatus, no purulence or masses, and no lesions. In December 2008, the Veteran underwent nasal surgery because the prior septoplasty did not heal correctly and was causing an obstruction. In July 2009, the Veteran stated that he had pain in his right middle lobe and that he thought a study stated that his right middle lobe "produced apnea." VA records dated in 2010 diagnosed OSA and the Veteran was provided a CPAP machine. A 2013 private sleep study confirmed the diagnosis of OSA. In August 2007 record and in a March 2014 statement, Dr. W.A.M. indicated that the Veteran had OSA. The record indicates that OSA was diagnosed during the 2000's. In August 2014, the Veteran was afforded a VA examination. At that time, it was noted that OSA had been diagnosed via sleep study in 2007. The examiner indicated that a review of the STRs was silent for sleep apnea/snoring. The Veteran complained of snoring and difficulty sleeping to his primary care physician in 2004, but that was 40 years after his discharge from the military. The Veteran was referred for a sleep study in 2007 which yielded a diagnosis of OSA which was improved with a CPAP. The examiner indicated that OSA was due to an obstruction of airway during sleep. There were several risk factors to include obesity, narrow airway, and genetic predisposition. There was no injury to the Veteran's air passage during the inservice accident in 1962. During time of this diagnosis, the Veteran weighed 244 pounds and his body mass index (BMI) was 35. The examiner stated that it was more likely that the Veteran's OSA was due to his obesity. The examiner further noted that OSA was due to the relaxation of throat and tongue muscles during sleep or bone structure of head and neck. In aging population, a review of the literature OSA can also be the result of the limitation of the brain to send signal to keep muscles stiff during sleep. OSA was an upper airway condition and was not associated with any lung disease or conditions. In March 2016, a VA medical opinion was provided. The examiner determined that the Veteran's OSA was not related to service. The examiner stated that a review of the STRs did not document an evaluation or treatment for snoring while in military service. A review of the STRs did document an evaluation for throat problems due to enlarged tonsils as well as nasal obstruction, recurrent tonsillitis, and that the Veteran underwent a tonsillectomy. The throat problems resolved with the tonsillectomy. The examiner noted that the Veteran also had a history of nasal congestion and obstruction. He required a rhinoseptoplasty to correct a deviated nasal septum. The deviated nasal septum may have caused him to have trouble with nasal breathing and nose congestion. The examiner noted that OSA was caused by laxity of the tissue in the pharynx. OSA was caused by narrowing of the upper airway due to recurrent collapse of the pharyngeal airway during sleep. The risk factors for OSA included older age, male gender, obesity and craniofacial or upper airway soft tissue abnormalities. The examiner indicated that the Veteran was diagnosed with OSA many years after military service. His enlarged tonsils during military service did not cause or contribute to his current/present OSA. In September 2016, Dr. M. indicated that while the MVA would not cause OSA, facial injury could aggravate it. The private medical evidence only presented possibilities. This opinion was equivocal and speculative. Such speculation is not legally sufficient to establish service connection. See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Thus, an additional medical opinion was requested on remand. The opinion was furnished in September 2017. The VA examiner was requested to address if it is more likely than not, less likely than not, or at least as likely as not that the Veteran's MVA resulted in injury which has a causal connection to current OSA. The examiner opined that it is less likely than not (50 percent or less probability) that the Veteran's MVA resulted in injury which has a causal connection to the current OSA. The examiner explained that the MVA would not have had a causal connection to the current OSA because it did not result in nasal fracture or an injury that altered the structure of the nasal passages such as a nasal fracture. According to the STRs, the Veteran injured his anterior superior iliac crest in the accident. The ENT examination was normal. The STRs do not document a facial injury. OSA is caused by narrowing of the upper airway due to recurrent collapse of the pharyngeal airway during sleep. There was no documented injury to the pharyngeal airway. The examiner was also requested to address if it is more likely than not, less likely than not, or at least as likely as not that the Veteran's inservice tonsillectomy surgery has a causal connection to current OSA. The examiner opined that it is less likely than not (50 percent or less probability) that the Veteran's inservice tonsillectomy surgery has a causal connection for the current OSA. A review of the STRs documents that the Veteran was treated in January 1962 for acute tonsillitis and in August 1962 for throat trouble and trouble breathing due to enlarged tonsils and intermittent nasal obstruction. The nasal passages and tonsils were found to be inflamed. The Veteran had a tonsillectomy performed in April 1963 for chronic tonsillitis. A removal of the enlarged tonsils (tonsillectomy) would have corrected the breathing problems due to obstruction from the enlarged tonsils. The upper pharyngeal airway would be patent post tonsillectomy. An April 1963 follow up visit to ENT stated that the Veteran was doing well post tonsillectomy. The Veteran's current OSA was then diagnosed many years later. The examiner was also asked to provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not, that OSA otherwise had its clinical onset during service or is related to any in-service disease, event, or injury. The examiner opined that it is less likely than not (50 percent or less probability) that the OSA otherwise had its clinical onset during service or is related to any inservice disease, event or injury. The examiner stated that a review of the STRs does not document symptoms of snoring or complaints of daytime somnolence or other symptoms related to OSA. The breathing complaints listed in the STRs were due to inflamed nasal passages and enlarged tonsils. The sore throats and breathing problems were corrected with the tonsillectomy. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors: whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case; whether the medical expert provided a fully articulated opinion; and whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In this case, as noted, Dr. M. provided an equivocal opinion which reduces the probative value of such statement. However, the VA examiners were aware of the Veteran's medical history, provided articulated opinions, and also furnished reasoned analyses. The Board therefore attaches significant probative value to the opinions. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). In particular, the most recent VA opinion fully explored the inservice findings as well as post-service findings and diagnosis, ultimately concluding that current OSA is not related to service including the inservice MVA which did not result in nasal trauma. With regard to the Veteran's contentions, the record does not substantiate any facial trauma. To the extent that the Veteran believes that his OSA is related to a lung disorder, he is not service-connected for a lung disorder. As to any other etiological connection to service, as a lay person in the field of medicine, the Veteran does not have the training or expertise in medical matters and this issue involves a medical determination that is too complex to be made based on lay observation alone. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007) (observing that a layperson can be competent to identify conditions that are simple, such as a broken leg, but is not competent to identify more complex conditions such as a form of cancer); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that lay testimony is competent as to matters capable of lay observation, but not with respect to determinations that are "medical in nature"); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration, and that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise). Thus, the Veteran's opinion is outweighed by the findings to the contrary by the VA examiner, particularly the most recent VA opinion by a medical professional who considered the pertinent evidence of record and found against such a relationship. See id.; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). Accordingly, as the most probative evidence establishes that there is no causal connection between current OSA disability and the Veteran's service, service connection is not warranted. (Continued on the next page) ORDER Service connection for OSA is denied. S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs