Citation Nr: 18152314 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 17-04 079 DATE: November 21, 2018 ORDER Service connection for obstructive sleep apnea, including as secondary to the service-connected asthma, is denied. REMANDED Service connection for hypertension, including as secondary to the service-connected asthma, is remanded. FINDING OF FACT The Veteran’s obstructive sleep apnea is neither proximately due to, nor aggravated beyond its natural progression by his service-connected asthma, and is not otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea, including as secondary to the service-connected asthma, are not met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.310(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Generally, service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for a disease diagnosed after discharge, where all evidence, including that pertinent to service, establishes that the disease was incurred therein. 38 C.F.R. § 3.303(d). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service-connected. 38 C.F.R. § 3.310(b). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 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. In this case, the Veteran contends service connection is warranted for obstructive sleep apnea. He contends his obstructive sleep apnea was caused by or is being aggravated by his service-connected asthma. The Board has reviewed the file and will assess whether service connection is warranted under all applicable theories of entitlement. The Veteran does have a current diagnosis of obstructive sleep apnea, which was confirmed by the October 2014 VA examiner. As for an in-service incurrence, the Board has reviewed the Veteran’s service treatment records and they are without complaints of, testing for, or diagnosis of obstructive sleep apnea. There is one September 1992 clinical notation showing he complained of sore throat for two to three days with increased wheezing at night. He was noted as having viral symptoms and a history of asthma that was being exacerbated by the viral symptoms. There is no suggestion of a sleep disorder, including apnea, at this time or any time during the Veteran’s active service. Following the Veteran’s September 1992 separation from active service, the Veteran was diagnosed with severe obstructive sleep apnea in January 2011. The Veteran’s medical history given at the time of this sleep study included hypertension, GERD, sinus problems and heart problems. He reported no prior history of sleep apnea. The January 2011 clinical treatment record by the physician that referred him for the sleep study shows the Veteran reported having loud snoring for fifteen years, which was getting worse with age. Thus, the Veteran reported symptoms beginning in approximately 1996, four years following his separation from active service. In September 2014, the Veteran’s former roommate reported an observation of trouble sleeping dating back to the summer and fall of 2000, also several years following the Veteran’s separation from active service. Similarly, in December 2016, the Veteran submitted a copy of an email statement from his daughter noting her observations of the Veteran snoring and stopping breathing while sleeping between 1998 and 2001, again, several years following his active service. The Veteran was afforded a VA examination in October 2014 and the examiner noted the absence of sleep studies or diagnoses related to sleep apnea during service, as well as no other complaints such as daytime somnolence, fatigue, loud snoring or other similar symptoms. The examiner also observed the initial diagnosis of sleep apnea in 2011. Based upon the lack of in service indications of any sleep disorder and the first indication of sleep apnea coming many years after the Veteran’s active service, the VA examiner found it less likely as not that the Veteran’s sleep apnea was incurred in service. The Veteran was again afforded a VA examination in May 2015. Here, the Veteran reported for the first time that he had an episode of loud snoring and stopped breathing in 1991 and was told by friends. He also reported having a sleep study in 1993. There is no evidence of either in the record. The May 2015 examiner referred to medical literature and described the most important risk factors for sleep apnea to include age, male gender, obesity, and craniofacial or upper airway soft tissue abnormalities. Additional risk factors were listed as smoking, nasal congestion, menopause and family history. The examiner explained that asthma is not a known cause of sleep apnea. Based upon these findings, the examiner found the Veteran’s sleep apnea to be less likely than not caused by his service-connected asthma. In January 2017, the RO obtained an additional medical opinion based upon a review of the claims file. The VA physician provided the same opinion and same rationale for the direct and secondary opinions as the prior examiner, noting the lack of symptoms of sleep disordered breathing or diagnosis for many years after his active service. The examiner also further explained the negative secondary opinion. Asthma, according to the examiner, is due to the edema of the lower airway, whereas sleep apnea is due to collapse of redundant tissues of the upper airway caused by the negative pressure of inspiration. This rationale was also stated with the examiner’s opinion in this report that the Veteran’s asthma has not aggravated his obstructive sleep apnea. This examiner also noted a statement by the Veteran suggesting a potential causal connection between his sleep apnea and his in-service exposure to diesel fuel from planes and vehicles. This is stated by the Veteran with his October 2015 notice of disagreement. The examiner explained that there is no support in medical literature for a causal connection between obstructive sleep apnea and diesel fume exposure and the examiner found there to be no plausible biological mechanism by which such a connection might occur. Based upon the foregoing, the Board concludes that, while the Veteran has a current diagnosis of obstructive sleep apnea, the preponderance of the evidence is against finding that the Veteran’s sleep apnea is proximately due to or the result of, or aggravated beyond its natural progression by his service-connected asthma. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The VA examiner explained that the medical literature and the physical nature of both sleep apnea and asthma do not support a finding of a causal connection between the two, to include aggravation. Service connection may also be granted on a direct basis, but the preponderance of the evidence is also against finding that the Veteran’s sleep apnea is related to an in-service injury or disease. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). There is no evidence of sleep related symptoms in service and no diagnosis of obstructive sleep apnea for years after the Veteran’s separation from active service. Each VA opinion in this case found a lack of evidence or reasoning to find a causal connection between the Veteran’s sleep apnea and his active service. While the Veteran believes his sleep apnea is proximately due to or the result of, or aggravated beyond its natural progression by, his service-connected asthma, or, in the alternative, causally connected to his active service, he is not competent to provide a nexus opinion in this case. The issue is medically complex, as it requires knowledge and interpretation of medical literature, as well as knowledge of the interaction between the upper and lower airways. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the VA medical opinions in this case. Accordingly, the claim for service connection for obstructive sleep apnea must be denied. The Board has duly considered the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim, so that doctrine is not applicable. REASONS FOR REMAND The Veteran contends service connection is warranted for hypertension. He has a current diagnosis of hypertension, which was confirmed by the May 2015 VA examiner and is shown in the clinical records. The Veteran separated from active service in September 1992 and the first indications of a hypertension diagnosis appear in the record starting in 2009. He has suggested the hypertension was caused or is being aggravated by his service connected asthma. The Veteran was afforded a VA examination for his hypertension in May 2015. At that time, the Veteran reported having hypertension discovered during a routine physical in 2008. The examiner noted the 2009 records showing the presence of hypertension as well as the Veteran’s report of hypertension manifesting in 2008, and the examiner suggested that the Veteran’s service-connected asthma was not present within the record at that time. The examiner went on to find that, because the Veteran’s hypertension preceded the onset of asthma, it is less likely than not that the hypertension is proximately due to the service-connected asthma. The examiner’s rationale is based on an inaccurate factual premise. The Veteran’s September 1991 service treatment records include a chest x-ray with a notation of a recent recurrence of asthma. Service connection for asthma was awarded based upon a direct relationship with the Veteran’s service. Thus, it appears the Veteran’s asthma is not shown to have manifested after his hypertension as the examiner suggested. Thus, as the May 2015 VA examiner’s opinion was based on an inaccurate factual premise, it is inadequate. See Reonal v. Brown, 5 Vet. 458, 461 (1993) (a medical opinion based upon an inaccurate factual premise is inadequate). Accordingly, remand is warranted for a new VA opinion to address the etiology of the Veteran’s hypertension. Further, in July 2018, the Veteran’s representative submitted a written brief and raised the issue of whether there is a direct connection between the Veteran’s hypertension and his active service. The brief lists every blood pressure measurement during the Veteran’s service and notes the gradual increase in the Veteran’s blood pressure throughout his active service, to include a suggestion that the Veteran was prehypertensive in service. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for hypertension, because no VA examiner has opined whether it is at least as likely as not that the Veteran’s hypertension initially manifested during his active service. On remand, an opinion as to the potential for service connection on a direct basis should also be obtained. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s hypertension is related to the Veteran’s period of active service, to include specifically whether it may be considered as least as likely as not that hypertension had its onset in service. The clinician forming the opinion should review the record, to include the Veteran’s blood pressure readings in service as shown in the service treatment records and listed in the Veteran’s representative’s July 2018 brief. The addendum opinion should also discuss whether the Veteran’s hypertension is at least as likely as not proximately due to or aggravated beyond its natural progression by his service-connected asthma. The Board again notes that the May 2015 examiner’s findings that the asthma manifested after 2009 is factually inaccurate. The addendum report should include reasons for any opinion expressed. If the clinician completing the report is unable to provide an opinion without resort to speculation, he or she should state whether the inability is due to the limits of the person’s knowledge, the limits of medical knowledge in general, or there is additional evidence that would permit the needed opinion to be provided. 2. After completing the above action, to include any other development as may be indicated by any response received as a consequence of the action taken in the preceding paragraph, the Veteran’s claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Adamson, Counsel