Citation Nr: 18145937 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 17-25 630 DATE: October 30, 2018 ORDER Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected diabetes mellitus with hypertension and erectile dysfunction, is denied. FINDINGS OF FACT 1. The Veteran’s current OSA did not manifest during active service and is not otherwise causally or etiologically related to his active service. 2. The Veteran’s current OSA was not caused or aggravated by his service-connected diabetes mellitus with hypertension and erectile dysfunction. CONCLUSION OF LAW Sleep apnea was not incurred in active service and is not proximately due to, the result of, or aggravated by a service-connected disability. 38 U.S.C. §§ 1101, 1110, 1111, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Air Force from October 1963 to October 1983. This matter is before the Board of Veterans’ Appeals (Board) on appeal from the January 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. In September 2017, the Board remanded the case for further development, instructing the AOJ to request authorization from the Veteran to release private treatment records and to obtain an addendum medical opinion. On October 23, 2017, the RO sent the Veteran an authorization form to obtain private treatment records, which the Veteran did not return. In January 2018 an addendum medical opinion was obtained. In September 2018, the Veteran indicated that he had no further information or evidence to submit. Accordingly, the Board finds that the Agency of Original Jurisdiction (AOJ) has substantially complied with the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Law and Analysis Neither the Veteran nor his representative has 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). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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). Sleep apnea is not an enumerated “chronic disease” listed under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions based on “chronic” symptoms in service, and “continuous” symptoms since service at 38 C.F.R. § 3.303(b) do not apply here. Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). A disability may also be service-connected on a secondary basis if it is proximately due to or the result of a service-connected condition. 38 C.F.R. § 3.310(a). Moreover, secondary service connection may be established by any increase in severity (i.e., aggravation) of a nonservice-connected condition that is proximately due to or the result of a service-connected condition. 38 C.F.R. § 3.310(b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995); Tobin v. Derwinski, 2 Vet. App. 34, 39 (1991). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In considering the evidence of record under the laws and regulations as set forth above, the Board finds that service connection for sleep apnea is not warranted. The Veteran’s service treatment records are negative for any complaints, treatment or diagnosis of sleep apnea or symptoms thereof. His retirement examination in June 1983 was normal with the exception of a foreign body in his left eye, and he denied having a medical history of frequent trouble sleeping. The first reference to OSA symptoms in the post-service medical records is in February 2001, which was approximately eighteen years after the Veteran’s retirement from military service, when his VA primary care doctor noted that his girlfriend reported noticing episodes of sleep apnea. The Veteran was supposed to have pulse oxymetry screening, but it appears that such testing was not completed at that time. See February 2001 VA treatment records; April 2017 medical opinion request. Eventually, a clinical diagnosis of OSA was made in March 2016, following a home sleep study. Based on the foregoing, the Board finds that the Veteran’s sleep apnea did not manifest in service. In addition to the lack of evidence showing that sleep apnea manifested during active duty service, the evidence of record does not link any current diagnosis to the Veteran’s military service. Indeed, there is no medical opinion relating the Veteran’s current OSA to his military service. The January 2018 VA examiner opined that the Veteran’s OSA is less likely than not incurred in active service. The examiner explained that he was diagnosed thirty-three years after his military retirement. He also explained that the two most important causes of OSA are aging and weight gain. The examiner noted that the Veteran had aged and gained a significant amount of weight (almost thirty pounds) between his military retirement and his diagnosis of sleep apnea. See also May 2017 VA medical opinion (the Veteran’s weight was 160 pounds at retirement in June 1983, versus 189.5 at the time of the sleep study in March 2016, which was a gain of 18 percent body weight; every 10 percent gain in body weight increases the risk of OSA by a factor of six). For these reasons, the Board finds that sleep apnea did not manifest during service or for many years thereafter and has not been shown to be causally or etiologically related to an event, disease, or injury in service. Thus, the remaining question is whether the Veteran’s sleep apnea was caused or aggravated by his service-connected diabetes mellitus. The Veteran submitted a July 2016 letter from his treating physician, Dr. A.R.-C. (initials used to protect privacy), who stated that the Veteran has steadily gained weigh since his diagnosis of diabetes many years ago. Dr. A.R.-C. opined that his weight gain was caused by dysmetabolic syndrome, i.e., diabetes mellitus. In Dr. A.R.-C.’s opinion, the Veteran’s OSA is more likely than not secondary to his diabetes. The October 2016 VA examiner found that the Veteran’s OSA was less likely than not proximately due to or the result of his service-connected diabetes mellitus with hypertension and erectile dysfunction. The examiner explained that OSA is due to collapse or sagging of the oropharynx during sleep, resulting in decreased airflow. Aging and weight gain result in anatomical and tissue changes that cause OSA, which is a physical problem of the upper airway. By contrast, diabetes mellitus is a disease of cell function, caused by an inability of the body’s cells to correctly use insulin. Diabetes mellitus is not a condition of the oropharynx. Similarly, the examiner stated that hypertension and erectile dysfunction do not cause anatomical changes to the oropharynx. He explained that hypertension, erectile dysfunction, and OSA can coexist, but that fact does not imply causation. Another VA medical opinion was obtained in May 2017. The May 2017 VA examiner discussed the relevant medical literature and stated that metabolic syndrome and type II diabetes are common complications of OSA. The relationship is the opposite of that advanced by the Veteran and Dr. A.R.-C. In other words, while there is no evidence that diabetes mellitus causes OSA, studies show that OSA can cause or worsen diabetes mellitus. As discussed above, the Veteran’s girlfriend reported witnessing apneas in 2001, which was years before the Veteran was diagnosed with diabetes mellitus. Furthermore, the May 2017 VA examiner refuted the Veteran’s assertion that diabetes mellitus caused him to gain weight. In this regard, he noted that the Veteran was clinically diagnosed with diabetes mellitus in December 2008 and placed on metformin. Prior to December 2008, his diabetes was controlled by diet. His weight was then stable at 192 pounds from April 2006 to January 2009 and subsequently dropped to 178 pounds by January 2010, before increasing to 189.5 pounds in March 2016, when he was diagnosed with OSA. The May 2017 VA examiner concluded that it was less likely than not that his OSA was caused by his diabetes. The examiner explained that the risk factors for OSA include male gender, obesity, and advancing age. The Veteran gained nearly thirty pounds between June 1983 and the sleep study in March 2016. Based on the statistical evidence, both his aging and his weight gain (unrelated to diabetes) significantly increased his odds of developing OSA. In September 2017, the Board remanded for an addendum medical opinion regarding whether the Veteran’s OSA may have been aggravated by his service-connected diabetes mellitus. The January 2018 VA examiner stated that OSA is a physical problem of the upper airway, the oropharynx, whereas diabetes mellitus is a disease of cell function, caused by the inability of the body’s cells to correctly use insulin. He stated that they are completely separate conditions. Diabetes and OSA may coexist, but this does not imply a causative relationship. The January 2018 examiner also addressed Dr. A.R.-C.’s June 2006 opinion by reiterating that uncontrolled diabetes mellitus causes weight loss rather than weight gain. He explained that diabetics who continue to gain weight after being diagnosed with diabetes mellitus are gaining weight due to overeating and/or lack of exercise and not because of the diabetes. Therefore, any increase in weight after being diagnosed with diabetes was not from the diabetes mellitus itself. The examiner stated that the contention that diabetes mellitus, including any weight gain from the disorder, caused or aggravated the Veteran’s OSA is not supported by the current medical literature. The Board finds the October 2016, May 2017, and January 2018 VA examiners’ opinions to be the most probative evidence of record regarding whether the Veteran’s OSA was caused or aggravated by his service-connected diabetes mellitus. While the Board acknowledges Dr. A.R.-C.’s June 2016 letter stating that the Veteran’s OSA was caused by weight gain related to his service-connected diabetes, the Board finds the opinions of the VA examiners to be more probative based on the detailed findings provided in their reports and detailed rationale. Dr. A.R.-C.’s causation opinion is conclusory and without citation to the medical literature. By contrast, as set forth at length above, the VA examiners explained that OSA and diabetes are distinct diseases, that there is no evidence that diabetes causes OSA, and that the Veteran’s substantial weight gain between time of retirement and his OSA diagnosis was unrelated to his diabetes mellitus. They supported the opinions with complete rationale that was based on a factual accurate premise, including the Veteran’s body weight recorded over the years. The Board has also considered the Veteran’s statements that his OSA is secondary to his service-connected diabetes. Although lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the diagnosis and etiology of his current sleep apnea, falls outside the realm of common knowledge of a lay person, particularly in light of the delayed onset, other risk factors, and the internal processes involved. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Moreover, even assuming the Veteran's lay assertions regarding etiology were competent, the Board nevertheless finds that the specific, reasoned opinions of the VA examiners are of greater probative weight than the Veteran’s general lay assertions in this regard. The examiners reviewed the claims file, considered the Veteran’s own reported history and assertions, and relied on their own training, knowledge, and expertise to form their opinions. Their opinions were also supported by clear rationale and considered medical literature. Based on the foregoing, the Board finds that the Veteran’s sleep apnea did not manifest in service, is not otherwise causally or etiologically related to his military service, and is not secondary to his service-connected diabetes mellitus. Accordingly, the claim for service connection for sleep apnea is denied. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D.S. Chilcote, Associate Counsel