Citation Nr: 18150488 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 15-02 939 DATE: November 15, 2018 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is denied. FINDING OF FACT OSA was not manifested in service, and the preponderance of the evidence is against a finding that the Veteran’s current sleep apnea is related to his service. CONCLUSION OF LAW Service connection for OSA is not warranted. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from October 1972 to July 1976, and from September 1990 to May 1991, and had additional Reserve service. In May 2018 the case was remanded for further development. Entitlement to service connection for OSA is denied. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially 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). To substantiate a claim of service connection, there must be evidence of: a present disability; incurrence or aggravation of a disease or injury in service; and 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). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). The Veteran’s service treatment records (STRs) are silent for complaints, diagnosis, or treatment of sleep apnea. A November 1972 STR notes an acute viral upper respiratory infection. On July 1976 examination (for separation from his first period of active service) sinusitis and sinusitis headaches in 1972 and 1973 were noted. He reported sinusitis in a September 1983 (Reserve) report of medical history. An April 1991 STR notes that he reported sinusitis. An October 2010 private sleep study report notes a diagnosis of severe OSA. A private January 2011 treatment record notes that the Veteran was using an AutoCPAP) device for his OSA. On June 2012 VA sleep apnea examination, the Veteran reported that before he began using a CPAP, he felt tired every morning, and snored a lot, but both conditions had improved. The examiner noted that OSA was diagnosed in October 2010. The examiner opined that the Veteran’s severe OSA was not incurred in or caused by his service (and was unrelated to an April 1991 report of sinusitis). She explained that a review of the medical literature, to include reports from the National Institute of Health, found that the causes of OSA included anatomical structure of the tongue, jaw, palate, or airway and obesity. She noted that there was no credible research that linked OSA allergy, and that the Veteran’s obesity and oral airway classification Mallampti III contributed to his OSA. In an August 2012 opinion, a private provider notes that the Veteran’s sinus problems are as likely as not to be the cause of, or played a part in, the occurrence of his sleep apnea. He explained that the Veteran had recurrent sinus problems for several years and that his sinus problems apparently had their onset during his early military service. In a September 2018 VA medical advisory opinion (obtained pursuant to a May 2018 Board remand), the provider noted that she reviewed the record, to include the above opinions, the Veteran’s submissions, and other items noted in the remand. She opined that the most likely etiology of the Veteran’s OSA is functional collapse of the velopharynx and/or oropharynx (which blocks or reduces airflow) during sleep. A review of the private clinic notes at the time of the OSA diagnosis showed a Mallampati III, a narrow posterior pharynx, a wide uvula, and a redundant soft palate. The Veteran’s body mass index (BMI) was 33. The provider expressed agreement with the June 2012 VA examiner and disagreement with the August 2012 private provider, and explained that based on her medical knowledge, experience as a Sleep Medicine specialist, and a review of the medical literature, there is no evidence that sinusitis causes OSA. She noted that rhinosinusitis may temporarily result in nasal congestion/obstruction with an effect similar to OSA, but resolving with treatment of the sinusitis. It is not in dispute that the Veteran has OSA, as OSA was diagnosed on private and VA examinations. However, OSA was not manifested in service; his STRs are silent for complaints, treatment, or diagnosis of OSA. Consequently, service connection for OSA on the basis that it became manifest in service and has persisted is not warranted. What remains for consideration is whether the Veteran’s OSA may otherwise be etiologically related to his service. There is medical opinion evidence for and against this claim. He has submitted a private opinion and internet articles to support his claim. The August 2012 private opinion is couched in speculative terms, includes inadequate rationale, and does not cite to medical literature, and therefore merits lesser probative value. Notably, the provider opined that the Veteran’s sinusitis/sinus problems caused his OSA. As sinusitis is not service-connected, any claim seeking service connection for OSA as secondary to sinusitis lacks legal merit. See 38 C.F.R.§ 3.310. Internet articles gain probative value when applied to the facts of a specific case by a medical provider; the Veteran has not submitted a medical opinion that applies the internet articles he submitted to the instant claim. The June 2012 and September 2018 VA opinions are probative evidence against the Veteran’s claim and the Board finds them (cumulatively) persuasive. The Board finds most probative the September 2018 VA opinion which notes that the provider reviewed the record, considered the Veteran’s lay assertions and internet article submissions and prior VA and private opinions. The provider supported the opinion offered with rationale that cites to factual data. She identified the etiology for the Veteran’s OSA (which is caused by functional collapse of the velopharynx and/or oropharynx that blocks or reduces airflow during sleep), explaining that a review of the medical literature found [no support for the proposition that sinusitis (which was noted in service) causes OSA]. The provider is a medical professional with subject matter expertise. Her opinion against the claim outweighs in probative value the evidence supporting the claim. Accordingly, the Board finds that the preponderance of the evidence is against this Veteran’s claim. Therefore, the benefit of the doubt rule does not apply; the appeal in this matter must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Bayles, Associate Counsel