Citation Nr: 18146717 Decision Date: 11/01/18 Archive Date: 10/31/18 DOCKET NO. 15-23 688 DATE: November 1, 2018 ORDER The claim of entitlement to service connection for sleep apnea, to include as secondary to posttraumatic stress disorder with major depression and panic attacks and generalized anxiety is denied. The claim of entitlement to service connection for diabetes mellitus type 2 is denied. FINDINGS OF FACT 1. The Veteran’s obstructive sleep apnea did not manifest during active service and is not otherwise related to his active service. 2. The Veteran’s obstructive sleep apnea is not related to his posttraumatic stress disorder with major depression, panic attacks and generalized anxiety. 3. The Veteran’s diabetes mellitus type 2 did not manifest during active service, within one year thereafter, and is not otherwise related to his active service. 4. The Veteran’s diabetes mellitus type 2 is not related to contaminant or chemical exposure during active service at Fort McClellan. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for sleep apnea, to include as secondary to posttraumatic stress disorder with major depression and panic attacks and generalized anxiety have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2018). 2. The criteria for entitlement to service connection for diabetes mellitus type 2, to include as related to claimed chemical exposure at Fort McClellan have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably with active duty service in the United States Army from June 1993 through June 1998. The appeal to the Board of Veterans’ Appeals (Board) comes from a February 2014 rating decision, which denied both claims. The Veteran’s claim for sleep apnea was previously denied in a November 2006 rating decision, but as the Veteran submitted new and material evidence within a year thereafter, the November 2006 rating decision did not become final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. As such, the Board will review the claim de novo based on the evidence of record. Service Connection To establish direct service connection, there must be competent evidence showing: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the in-service injury incurred or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases (including diabetes mellitus) may be presumed to have been incurred in or aggravated by service if manifested to a compensable degree within one year of discharge from service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307(d), 3.309(a). A showing of chronicity requires a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” 38 C.F.R. § 3.303(b). When a disease listed at 38 C.F.R. § 3.309(a) (which includes diabetes mellitus) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was shown in service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Id.; Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); Walker v. Shinseki, 708 F.3d 1331, 1336, 1339 (Fed. Cir. 2013) (explaining that “shown as such in service” means “clearly diagnosed beyond legitimate question”). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker, 708 F.3d at 1338-39. Generally, a claimant has the responsibility to present and support a claim for benefits. All information, lay evidence and medical evidence in a case is to be considered by the Board in deciding the claim. When there is an approximate balance of positive and negative evidence regarding any material issue, the claimant is to be given the benefit of the doubt. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue.”). The Board has an obligation to provide reasons and bases supporting its decision, but there is no need to discuss, in detail, every piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board’s analysis is to focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). The claim of entitlement to service connection for sleep apnea, to include as secondary to PTSD with major depression and panic attacks and generalized anxiety is denied. The Veteran seeks service connection for obstructive sleep apnea, which he contends is secondary to PTSD. The Veteran is service-connected for PTSD, which is evaluated at 100 percent from July 2014. Medical records associated with the record show the Veteran was diagnosed with obstructive sleep apnea in July 2007. The current diagnosis element of service connection is considered met. 38 C.F.R. § 3.303. Review of the service treatment records and evidence of record that relates to the period of active service does not reveal any treatment, diagnosis of, reports of, or symptoms of the claimed condition during active service. There is no medical evidence relating the claimed condition to the Veteran’s active military service. Regarding the claim that his condition was related to his service-connected PTSD, a medical opinion from a VA examiner was requested. In a January 2014 VA examination report, the VA examiner, a nurse practitioner, opined that there is insufficient evidence that obstructive sleep apnea is caused or aggravated by PTSD. The VA examiner cited to an article from an online publication, which indicated that definite risk factors for the claimed condition include obesity and craniofacial or upper airway soft tissue abnormalities, while potential risk factors include heredity, current smoking, and nasal congestion. The VA examiner noted that the Veteran’s risk factors contained in the medical records included an elevated body mass index, a recent history of smoking, his family history of obstructive sleep apnea (his mother), and a craniofacial/upper airway soft tissue abnormality as diagnosed in a 2007 ENT consultation. The VA examination opined that it was less likely than not that the Veteran’s obstructive sleep apnea was due to, a result of, or aggravated by his PTSD. The Veteran contends, through his representative, that the VA examination was inadequate because the VA examiner was a non-physician and did not have any particular expertise in pulmonary disorders. October 2018 Appellant’s Brief. The representative cited to a medical study from the Journal of Clinical Sleep Medicine, titled “Obstructive Sleep Apnea and Posttraumatic Stress Disorder among OEF/OIF/OND Veterans,” and noted the study as having concluded in pertinent part: Given the growing body of research showing higher rates of OSA risk and/or diagnosis in veterans with PTSD, the question arises as to why this might be the case. One explanation may be due to the shared risk factors of PTSD and OSA in a military population. Hoge and colleagues suggest disturbed sleep in combat, which can result from prolonged operations or lack of quality sleep, is a potential precursor not only to PTSD but also OSA. It is possible that prolonged sleep deprivation along with sleep fragmentation and hyperarousal due to the physical and psychological stressors of combat contribute to the etiology of OSA, and separately to PTSD severity. Another possibility is that the chronic stress from PTSD increases the likelihood of developing OSA, or that the sleep disturbances of OSA increase the likelihood of getting PTSD. Longitudinal studies are needed to help parse out the temporal relationship of OSA and PTSD. Our finding that greater PTSD symptom severity increased the probability of screening as high risk for OSA is consistent with studies examining non-veteran samples with PTSD (e.g.,Spoormaker). The Board has carefully considered the Veteran’s argument with regards to the adequacy of the VA examination. The Board finds the medical qualifications designated on the VA examination to denote a level of medical training sufficient to proffer such an opinion on a relatively common disorder. The opinion appears to have been well thought out, references facts supported by the Board’s independent review of the medical records, and appears to reflect application of the known risk factors for OSA. The Board affords this opinion significant weight. Regarding the cited article by the Veteran’s representative, generally, a mere citation to or quotation from a medical article does not trigger the duty to reexamine a Veteran. A medical article or treatise “can provide important support when combined with an opinion of a medical professional” if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least “plausible causality” based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999); see also Sacks v. West, 11 Vet. App. 314 (1998) and Wallin v. West, 11 Vet. App. 509 (1998). The excerpt provided on appeal merely discusses correlation, not causation, and does not discuss relationships with any degree of certainty. Further, the article was not accompanied by an opinion from a medical professional. Lastly, the conclusions cited therein do not otherwise show “plausible causality.” The Board affords this article very little weight. As it is not evidence that contradicts the findings of the VA examiner, and does not establish plausible causality, the Board finds that the submission of such does not trigger the duty to provide a new examination under 38 U.S.C. § 5103A(d). The record does not reflect that the Veteran or his representative possesses the requisite expertise to provide any medical diagnosis or opinions on etiology, and the assertions of record in this regard, insofar as they are intended as such, are given no weight. See Jandreau v. Nicholson, 492 F.3d at 1374 (affirming that lay evidence is generally not competent to establish medical diagnosis or etiology). As there is no medical nexus linking the Veteran’s obstructive sleep apnea to his service-connected PTSD, the claim for secondary service connection under 38 C.F.R. § 3.310 fails. The Board considered alternative theories of service connection. However, as the Veteran does not have any claimed in-service incurrence of the disability, the claim for direct service connection under 38 C.F.R. § 3.303 fails. Obstructive sleep apnea is not one of the enumerated chronic conditions under 38 C.F.R. § 3.309; regardless, there is no evidence of the condition having chronic symptoms during and since service, as it was never “clearly diagnosed beyond legitimate question” during active service or until years after the Veteran was separated from service. The Board notes that there are lay accounts of the Veteran’s sleep disturbances of record. The Veteran reported sleep disturbances since 1995 in a June 2005 private treatment note, and his wife, to whom he was married in 1998 is noted as having reported sleep disturbances to the Veteran in the 2006 medical records. Additionally, a May 2006 lay statement from an employer noted the Veteran had difficulties with sleeping, as evidenced by his coming to work late during his post-service employment from 1998 through 2004. Unfortunately, the Board cannot draw any conclusions from these reports—the Veteran is also noted to have sleep disturbances due to his PTSD in the medical evidence of record, and the lay evidence regarding sleep disturbances is insufficient to potentially support any retrospective diagnosis. Weighing the evidence before the Board, the preponderance of the evidence indicates there is no nexus between the Veteran’s obstructive sleep apnea and his active service or his service-connected psychiatric disorder. As such, service connection is not warranted, and the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303; Gilbert v. Derwinski, 1 Vet. App. at 53. The claim of entitlement to service connection for diabetes mellitus type 2, to include as related to chemical exposure at Fort McClellan is denied. The Veteran seeks service connection for diabetes mellitus 2, which he contends is related to chemical exposure at Fort McClellan. The claimed disability of diabetes mellitus 2 appears in medical records from 2014. He was noted to have glucose intolerance in private treatment records as early as December 2005. The current diagnosis element of service connection is considered met. 38 C.F.R. § 3.303. There is no claimed in-service incurrence, other than chemical exposure at Fort McClellan. The Board notes, as an initial matter in analyzing this claim, that there are no presumptions under the law or in VA policy for a class of servicemembers who were stationed at Fort McClellan. When there are no presumptions under the law, the ordinary principles for proving service connection apply. The claimant has the ultimate burden of (1) proving exposure in-service, and (2) proving a medical nexus between the current disability and the claimed chemical exposure. See 38 C.F.R. § 3.303. In support of his claim, the Veteran submitted a printout of a Fox News article entitled “Sick veterans who served at shuttered, toxic Army base turn to Congress, VA for help” in September 2014. The news article references the EPA having labeled it a hazardous site, and references claimed exposure to polychlorinated biphenyls (PCBs) and references potential links between PCBS and melanoma, liver cancer, gall bladder cancer, and brain and breast cancer. The article does not reference diabetes mellitus 2. While the Veteran is noted in the record to have served at the base, review of the record does not support any particular finding of the claimed in-service incurrence of chemical exposure—the Veteran did not provide evidence that he had been exposed to chemicals, or specify any particular method of exposure. Additionally, while the Fox News article suggests potential exposure at Fort McClellan, and references disease related to PCBs—it does not cite to any findings of how exposure occurred on the base or reference any relationship between PCBs and diabetes mellitus 2. The Veteran and his representative, on appeal, contend the Veteran should have been provided more assistance, insofar as he was not afforded a VA examination. However, the minimum showing to trigger the VA’s duty to provide a medical examination was not met here. The obligation to provide a contemporaneous medical examination is triggered only if the competent evidence of record (a) shows a current disability or symptoms thereof, (b) indicates such disability may be associated with active service, and (c) the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C. § 5103A(d) (2012). Assistance need not be provided if there is no reasonable possibility that any assistance VA would provide would substantiate the claim. 38 C.F.R. § 3.159(d). There is no evidentiary indication that the claimed disability is related to the claimed exposure, or otherwise related to service. The Veteran’s claim of chemical exposure and a causal relationship to his diabetes mellitus 2 appears, based on the pleadings of record, merely speculative. The record does not contain specific pleadings, does not reflect that the Veteran has any unique knowledge of what chemicals were used at Fort McClellan or how they were used, and his DD-214 does not record a military occupational specialty that would suggest heightened exposure to chemicals. Moreover, the record does not reflect that the Veteran possesses any medical training or the expertise to provide a medical opinion on the etiology of diabetes mellitus 2 or the medical implications of exposure to PCBs. As such, his lay assertions are given no weight. See Jandreau v. Nicholson, 492 F.3d at 1374 (affirming that lay evidence is generally not competent to establish medical diagnosis or etiology). As there is only speculation in the record suggesting that the Veteran’s active service to include the claimed chemical exposure at Fort McClellan may be related to his diabetes mellitus 2, the VA did not have the duty to develop the claim, or provide a medical examination for this claim. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(d). Weighing the evidence before the Board, the preponderance of the evidence does not show any relationship between the Veteran’s diabetes mellitus 2 and his active service, to include the claimed exposure to chemicals at Fort McClellan. As such, service connection is not warranted, and the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303; Gilbert v. Derwinski, 1 Vet. App. at 53. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. C. King, Associate Counsel