Citation Nr: 1803814 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-16 516 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected degenerative disc disease of the cervical spine. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Cohen, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from March 1983 to June 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Houston, Texas Regional Office (RO). In January 2017, the Veteran was afforded a hearing before the undersigned Veterans Law Judge (VLJ) sitting at the RO. A hearing transcript is in the record. FINDING OF FACT The Veteran's obstructive sleep apnea was not caused by his service-connected degenerative disc disease of the cervical spine. CONCLUSION OF LAW The criteria to establish service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and to Assist VA has a duty to notify claimants about the claims process and a duty to assist them in obtaining evidence in support of their claim. VA issued a February 2009 notice to the Veteran which informed him of the evidence generally needed to support his claim; what actions he needed to undertake; and how VA would assist him in developing his claim. The February 2009 notice was issued to the Veteran prior to the October 2009 rating decision. All identified and available relevant documentation has been secured to the extent possible and all relevant facts have been developed. There remains no question as to the substantial completeness of the claim. 38 U.S.C. §§ 5103, 5103A, 5107 (2012). For these reasons, the Board finds that VA's duties to notify and to assist have been met. II. Analysis Service connection shall be granted on a secondary basis under the provisions of 38 C.F.R. § 3.310 where it is demonstrated that a service-connected disorder caused or aggravated a nonservice-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). In January 2008, the Veteran underwent cervical spine surgery for his service-connected degenerative disc disease of the cervical spine. The Veteran asserts that during the surgery, a device was placed around his cervical spine that pressed into his esophagus, which caused the Veteran's obstructive sleep apnea (OSA). However, the January 2008 surgical notes indicated that once the surgery was complete, the esophagus and carotid were inspected and no trauma to either was found. In contradiction to the Veteran's assertions, further surgical notes indicated no complications during the operation. In December 2008, the Veteran underwent a private sleep study. He was diagnosed with OSA. The Veteran reported experiencing symptoms such as loud snoring, night sweats, gasping episodes, talking during sleep, waking up four to six times per night, dry mouth and headaches upon awakening, and daytime sleepiness despite sleeping eight hours per night. Although no etiological opinion was provided, the examiner indicated that the Veteran was a 51 year old male, weighing 242 pounds with a body mass index (BMI) of 35.9. The examiner noted that a normal BMI is between 18.6 - 24.9. In a February 2009 written statement, the Veteran's wife indicated that the Veteran began experiencing symptoms after his cervical spine surgery. Such symptoms included constant snoring, improper breathing and gagging. In September 2009, the Veteran was afforded a VA examination. The physical examination indicated that the Veteran weighed 241 pounds. The examiner opined that the Veteran's cervical spine surgery did not cause his OSA because there is no relationship between such surgery and OSA. In a December 2009 private treatment record, the Veteran reported experiencing constant snoring after his cervical spine surgery. No etiological opinion was indicated. In February 2010, the Veteran underwent a private ear, nose and throat (ENT) evaluation. The Veteran was diagnosed, in pertinent part, with sleep apnea compounded by spine stabilization. A physical examination indicated the Veteran weighed 230 pounds. No etiological opinion was provided. In May 2010, the Veteran underwent private gastroenterology treatment with David L. Stump, M.D. The Veteran reported experiencing OSA symptoms after his cervical spine surgery. He reiterated that during the operation, a device was placed around his cervical spine which may have been pressing into his esophagus. A physical examination indicated the Veteran weighed 248 pounds. Dr. Stump indicated that he was unable to provide an etiological opinion pertaining to the Veteran's OSA because it was not his area of expertise. Significant because it bears on the Veteran's contention of an esophageal obstruction, in June 2010, the Veteran underwent a private esophagogastroduodenoscopy (EGD) with Dr. Stump. In the EGD report, Dr. Stump indicated that the Veteran's esophagus was normal and that no external compression was present. In June 2010, the Veteran underwent private treatment with Donald L. Hilton, Jr., M.D. Dr. Hilton indicated that although he did not observe any external compression to the Veteran's esophagus, it is "possible" that the Veteran's OSA is related to his cervical spine surgery. Dr. Hilton's opinion is of low probative value because it speculates on the issue of etiology. Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009) (a medical opinion is speculative when it uses equivocal language such as "may well be," "could," or "might"). In March 2014, the Veteran was afforded a VA examination. The examiner opined that the Veteran's OSA was not caused by his service-connected degenerative disc disease of the cervical spine. The examiner explained that the Veteran's OSA is due to other risk factors, such as advanced age, male gender and obesity. The Veteran also submitted a medical article from the internet in support of his appeal. It indicated that out of twelve patients who underwent cervical spine surgery, four patients developed OSA because of a reduced airway size. This medical article is of low probative value because it does not account for the specific facts and circumstances presented in the Veteran's appeal. A preponderance of the evidence is against finding that the Veteran's OSA was caused by his service-connected degenerative disc disease of the cervical spine. The January 2008 surgical notes indicated that after the surgery, the esophagus and carotid were free from trauma and no complications were encountered during the surgery. The December 2008 sleep study indicated that when the Veteran was first diagnosed with OSA, he was a 51 year old male, weighing 242 pounds with a BMI of 35.9. The February 2010 ENT private evaluation indicated that the Veteran weighed 230 pounds. Dr. Stump's May 2010 private treatment notes indicated the Veteran weighed 248 pounds. The June 2010 EGD found that the Veteran's esophagus was normal and without external compression. The March 2014 VA examiner opined that the Veteran's advanced age, obesity and male gender were the primary factors in causing his OSA. All of these factors, especially the Veteran's body weight, have been cited as causative factors in the development of his disorder. Therefore, service connection is not warranted and the claim is denied. ORDER Service connection for obstructive sleep apnea is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs