Citation Nr: 18142877 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 10-03 561 DATE: October 17, 2018 ORDER Service connection for obstructive sleep apnea is denied. REMANDED Entitlement to service connection for a left foot disorder, claimed as nerve damage, to include as secondary to service-connected left ankle tendonitis, is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has obstructive sleep apnea due to a disease or injury in service. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea are not met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1972 to September 1999. The Board notes that the Veteran appealed the July 2013 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2014 Order, the Court granted a Joint Motion for Remand (JMR), which vacated and remanded the issues on appeal. In May 2014, January 2015, and September 2016, the Board remanded the matters for further development. Service Connection – Obstructive Sleep Apnea Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran contends that his currently diagnosed obstructive sleep apnea was misdiagnosed in service as asthma and should therefore be service-connected as having been incurred in service. See April 2010 Statement in Support of Claim. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of obstructive sleep apnea, and evidence shows that the Veteran suffered from acute asthma in service, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of obstructive sleep apnea began during service or is otherwise related to an in-service injury, event, or disease, to include the diagnosis of asthma. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Service treatment records show that in May 1987 pulmonary function testing was interpreted as indicating a mild obstructive ventilator defect. In May 1997, the Veteran reported to a pulmonary clinic and asthma was listed among the Veteran’s problems. In July 1997, testing was conducted for evaluation of possible asthma or reactive airway disease. Results of testing were interpreted as indicating a mild obstructive defect on baseline spirometry. The findings were consistent with a diagnosis of asthma. On retirement examination in April 1999, the Veteran’s lungs, chest and sinuses were normal and the Veteran denied any history of current asthma, shortness of breath, chronic cough, or frequent trouble sleeping. Private treatment records show the Veteran was not diagnosed with obstructive sleep apnea until a September 2002 sleep study conducted three years after separation from service. An April 2002 treatment note reflects the Veteran’s statements that he had experienced difficulty sleeping for the prior two years. In a July 2008 statement, the Veteran expressed that he was experiencing the same sleeping symptoms as he did in service. The Veteran underwent a VA sleep apnea examination in July 2014. He stated that he was medically evaluated in service in 1997 for chronic fatigue and chest pain because he was falling asleep at his desk while working, and was diagnosed with asthma. He said that after separation from service, he found himself falling asleep while driving and felt chronically fatigued at work. His wife requested that he be evaluated for sleep apnea, and he learned he had sleep apnea in 2002. He began using a CPAP machine shortly thereafter. The examiner opined that the Veteran’s obstructive sleep apnea was less likely than not related to service. The rationale was that there was no evidence of sleep apnea during military service; rather, the evidence was sufficient for a finding of periodic exercise-induced asthma, with a contributing factor of multi-year tobacco abuse. The examiner cited to medical literature which indicated that asthma is a differential diagnosis for symptoms of obstructive sleep apnea, but not a risk factor or consequence of sleep apnea. Sleep apnea is defined as repetitive episodes of cessation of airflow (apnea) at the nose and mouth during sleep due to obstruction at the level of the pharynx. The examiner noted that sleep apnea could be an associated condition of asthma, whereas asthma risk factors included genes, gender, race, body mass index, environmental exposures, and food allergies. Sleep apnea, the examiner concluded, was not a risk factor or consequence of asthma. More, the Veteran’s diagnosis of sleep apnea came several years after service. Finally, the examiner opined that it was not likely that the Veteran’s currently diagnosed sleep apnea was misdiagnosed as asthma in service. The rationale was that the diagnoses of mild obstructive airway in 1979, 1997, and 2002, which the Veteran claimed were the same as sleep apnea, were in fact diagnoses of obstructive ventilatory defect due to asthma. Thus, the evidence was sufficient for a diagnosis in service of periodic exercise-induced asthma, with contributing factor of multi-year tobacco abuse. In November 2014, the Veteran submitted treatise evidence showing that studies suggest that people with asthma may be at increased risk for sleep apnea, and that sleep apnea can worsen asthma. In a June 2015 clarifying addendum opinion, the VA examiner affirmed her earlier, July 2014 opinion. Specifically, the examiner noted that the Veteran had symptoms of chronic fatigue with chest pain and daytime hypersomnolence while working in service in 1997. Medical evaluation at that time determined that symptoms were due to asthma and a long history of smoking tobacco since the 1970s. The examiner addressed the Veteran’s contention that his wife noted snoring and stopped breathing over their 43 years of marriage. The examiner said that snoring is not always a sign or symptom of sleep apnea, as snoring could be primary or secondary in etiology. The symptom of “stopping breathing” could be a symptom of sleep apnea, but could also come from other respiratory disorders such as asthma. The examiner concluded that the Veteran’s sleep apnea was most likely due to sleep disordered breathing caused by a narrowing of the oropharynx as defined in the medical research literature, and not caused by his asthma. Asthma, she noted, was not a risk factor or consequence of obstructive sleep apnea. The examiner also concluded that obstructive sleep apnea was not aggravated by asthma. The rationale was that the evidence documented no significant progression of the Veteran’s asthma, based on PFT results in 1987 and 1997 being very similar without measured changes in decrease of lung function. More, the examiner opined that the asthma condition was clinically stabilized, and there was a rational explanation for ongoing daytime hypersomnolence. A September 2016 statement from a fellow serviceman indicated that the Veteran often appeared fatigued and exhibited signs of forgetfulness, confusion and an inability to concentrate in service. Oftentimes, he observed the Veteran nodding off at meetings and falling asleep at his desk in his office. Taken together, the July 2014 and June 2015 VA opinions establish that the Veteran’s obstructive sleep apnea is less likely than not related to an in-service injury, event, or disease, including the diagnosis of asthma. The combined rationale indicates that sleep apnea was not a consequence of asthma; moreover, the examiner offered an alternative etiology for the Veteran’s sleep apnea, namely, that it was caused by a narrowing of the oropharynx and not his asthma or any incident of service. The examiners’ combined opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran believes his obstructive sleep apnea is related to an in-service injury or event, to specifically include his diagnosed in-service asthma, and has submitted lay statements from himself and a fellow serviceman to that effect, he is not competent to provide a nexus opinion in this case. The issue is also medically complex, as it requires knowledge of the interaction between multiple systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the detailed July 2014 and June 2015 VA opinions. Aside from his lay statements, the Veteran has not offered a medical opinion to support his contention. He has submitted medical treatise evidence showing that a relationship may exist between asthma and obstructive sleep apnea; and, in the course of this appeal, filed a claim for service connection for asthma. However, that claim was denied and the Veteran did not perfect an appeal as to that denial. Thus, he is not in receipt of service connection for asthma, and the theory that service connection may be warranted for sleep apnea on a secondary basis is without merit. Accordingly, the preponderance of the evidence weighs against the claim for service connection for obstructive sleep apnea. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. §3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The Veteran contends that he has a left foot disability, originally claimed as nerve damage, related either to his service-connected left ankle tendonitis or to service. Service treatment records show that the Veteran was treated in April and May 1986 for a left ankle sprain. In March 1999, he sustained a puncture to his left heel from a nail, which caused swelling and soreness. He has consistently asserted that he has pain, soreness, and swelling in his left foot, and has asserted such may be due to running from two to five miles three times a week, and marching over 15 miles on a continuous basis throughout his 28-year military career. See April 2010 Correspondence. He has undergone a VA examination in July 2014, which showed the presence of asymptomatic left foot hallux valgus. The examiner, in an addendum dated in May 2015, determined the Veteran’s hallux valgus to be unrelated to either the Veteran’s left ankle tendonitis or to his foot injury in 1999. The Veteran’s left foot has not been examined in over four years, and the Veteran maintains that his left ankle disability continues to aggravate his foot disorder. While passage of time alone does not necessarily render a prior examination inadequate, in this case, given that the prior VA examiner indicated that the Veteran’s left foot disability is asymptomatic, attributing foot pain to the Veteran’s ankle disability, and given that the Veteran continues to assert ongoing foot pain secondary to his ankle, the Board believes an updated foot examination would assist in coming to a final conclusion in the matter. In addition, insofar as the Veteran claims his foot disability could be related to running and marching during the course of his long military career, this can be addressed by a VA examiner on remand. See 38 C.F.R. § 3.303(d) (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). The matter is REMANDED for the following action: 1. Contact the Veteran and request that he identify, submit, or authorize VA to obtain any VA or private treatment records not already on file that he believes are pertinent to his appeal. 2. Schedule the Veteran for an appropriate VA foot examination. The claims file must be made available to the examiner for review, and all indicated tests should be performed. The examiner is requested to take a history from the Veteran as to the onset and progression of his left foot disability(ies). Upon examination, the examiner should address the following: (a.) Identify all left foot disabilities found to be present since the date of the claim (i.e., since August 2007). If the Veteran’s left foot pain cannot be attributed to an underlying diagnosis, to include hallux valgus, please still address whether any such condition manifests in functional impairment such as limitation of motion, weakness, instability, or the like. A condition manifested by pain with functional impairment is in fact a disability for VA purposes. (b.) For each identified foot disability, state whether it is at least as likely as not (50 percent or greater probability) that such disability is related to the Veteran’s period of active service. For the purposes of this opinion, the examiner should consider the Veteran’s contention that his disability stems from running for 2 to 5 miles three times a week, and marching 15 miles on a continuous basis during his 28-year military career. (c.) Notwithstanding the above, for each left foot disability, please also state whether it is at least as likely as not (50 percent or greater probability) that such was caused or aggravated beyond its natural progression by the Veteran’s service-connected left ankle tendonitis. (Continued on Next Page) 3. Then, readjudicate the remanded issue. If the benefit sought on appeal remains denied, provide the Veteran and his representative a supplemental statement of the case. Thereafter, return the case to the Board for further appellate consideration, if in order. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Polly Johnson, Associate Counsel