Citation Nr: 18156936
Decision Date: 12/11/18	Archive Date: 12/11/18

DOCKET NO. 14-27 590
DATE:	December 11, 2018
ORDER
Entitlement to service connection, to include on a secondary basis, for sleep apnea is denied.
REMANDED
Entitlement to service connection for heart disease is remanded.
Entitlement to an increased disability rating for a headache disorder is remanded.
FINDING OF FACT
The Veteran’s sleep apnea was not present in service and is not otherwise related to service or service-connected disability.
CONCLUSION OF LAW
The criteria for service connection for sleep apnea are not met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2018).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran had active service with the United States Navy from November 1972 to September 1976 with additional service in the Air Force Reserve from 1978 to 1987 and in the Army National Guard in 1991.  This matter is before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.  The Veteran’s claims were remanded by the Board in February 2017.
The record also reflects that an appeal was perfected in October 2018 for the issues of entitlement to an increased rating for posttraumatic stress disorder (PTSD) and entitlement to an earlier effective for the grant of service connection for PTSD.  These issues were then certified to the Board in November 2018.  The electronic Veterans Appeals Control and Locator System (VACOLS) shows these issues are part of a separate appeal stream and indicates that the AOJ is still taking action on them as they remain in advance certification status.  So, the Board will not accept jurisdiction over these issues and they will be the subject of a later decision.
Service Connection
The Veteran seeks service connection for sleep apnea on a secondary basis.  In addition, a claim for direct service connection for sleep apnea was denied in a July 2016 rating on appeal.  As a result, the Board will analyze the claim on a direct basis as well.
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  To establish a right to compensation for a present disability, a Veteran must show: (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 - the so-called “nexus” requirement.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  
Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service.  38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a).  Continuity of symptomatology may also provide a basis for a grant of service connection for those diseases defined as “chronic” by VA, which does not include sleep apnea.  38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  
Service connection may also be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury.  38 C.F.R. § 3.310 (a); Allen v. Brown, 7 Vet. App. 439, 446 (1995) (en banc).  To establish service connection for a claimed secondary disorder, there must be medical evidence of a current disability; evidence of a service-connected disability; and medical evidence of a nexus between the service-connected disability and the current disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-517 (1995). 
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, any reasonable doubt is resolved in favor of the Veteran.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  
Although the Veteran has a diagnosis of obstructive sleep apnea, he is not entitled to service connection on a secondary basis because the record lacks evidence that his service-connected anxiety disorder, or any of his other service-connected disabilities, proximately caused or aggravate it.
After a February 2018 VA examination and review of the record, the examiner confirmed the diagnosis of sleep apnea and noted the Veteran’s complaints of snoring and apneic episodes during sleep.  The examiner also noted the Veteran’s sleep study from January 2017 was “abnormal” and that while the actual study was not of record, a medical review of the results showed that his sleep apnea resolved when he slept on his side.  A CPAP (Continuous Positive Airway Pressure) machine was also ordered.  The examiner found that sleep apnea was less likely than not (less than 50% probability) proximately due to or the result of the Veteran’s service connected anxiety disorder hearing loss, tinnitus, or wrist condition.  He explained that he was not aware of any medical literature that shows sleep apnea can be caused or aggravated beyond its natural progression by these disabilities.
There is no favorable competent opinion of record or medical evidence of record that suggests a relationship between the sleep apnea and the Veteran’s anxiety disorder or other service-connected disabilities.  Absent evidence of a nexus between the claimed condition and any service-connected disability, service connection cannot be granted on a secondary basis.  38 C.F.R. § 3.310; Allen, supra; see also, Wallin, Reiber, supra.
The Board is also unable to attribute the Veteran’s sleep apnea to his military service.  Service treatment records do not document complaints or findings suggestive of a chronic sleep disorder including specific complaints of disordered sleep, snoring, shortness of breath, fatigue, excessive daytime sleepiness, or other signs indicative of sleep apnea.  At his separation physical in April 1976, he specifically denied a history of frequent trouble sleeping.
Pertinent complaints do not arise in post-service treatment records until almost 40 years after service ended and more than 20 years after his Reserve service ended.  The earliest relevant medical evidence is found in a May 2014 VA psychiatry inpatient note showing a diagnosis of “probable sleep apnea.”  A May 2015 VA medical record noted a requested sleep study due to the following symptoms: snoring, fatigue, insomnia, excessive daytime sleepiness and witnessed apnea.  Another May 2015 VA medical record shows the Veteran reported a diagnosis of sleep apnea, but that he was unable to complete an entire sleep study due to difficulty sleeping.  A January 2017 sleep study was abnormal and a CPAP machine was prescribed.  However, these treatment records do not suggest that the symptoms originated during military service and there is no indication that the Veteran related his symptoms to service or any event of service at that time.  His failure to report any pertinent complaints in the immediate years after service, is persuasive evidence that he was not then experiencing any relevant problems and outweighs his present recollection to the contrary.  Although not a dispositive factor, the lapse in time between service and post-service medical symptoms may be considered as part of the analysis of a service connection claim.  See Maxson v. West, 12 Vet. App. 453 (1999), aff’d, 230 F.3d 1330 (Fed. Cir. 2000); see also Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative weight than a history reported by the Veteran).
There is also no medical opinion linking the sleep apnea to the Veteran’s service military service decades earlier.  A VA examiner concluded that sleep apnea was less likely than not related to service.  See February 2018 VA opinion.  He explained that there was no evidence of sleep apnea during the service and it was not diagnosed until 27 years after service the Veteran’s service ended.  To the extent the Veteran asserts that the sleep apnea is nevertheless etiologically related to service, such an assertion treads into the realm of medical expertise.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007).  In any event, the probative value of his belief is outweighed by that of the medical examiner, who clearly does have the education, training and experience to address the etiology of sleep apnea.
Since the evidence of record fails to establish that the Veteran’s sleep apnea was present in service, and there is no evidence relating it to military service or service-connected disability, the claim cannot be granted.  Accordingly, the preponderance of the evidence is against the claim and there is no reasonable doubt to be resolved.  38 U.S.C. § 5107(b).
REASONS FOR REMAND
The Veteran is seeking service connection for a heart condition and headaches that he asserts had their onset during service.  As noted above, these issues were remanded by the Board in February 2017, for additional development.  The requested examinations were provided, but the Board finds that the accompanying opinions are inadequate.  So, these issues are being remanded again.
VA examination was conducted in February 2018 to address the etiology of the Veteran’s heart condition.  The claims file was reviewed, and the examiner noted findings of ST segment changes and EKG nonspecific changes that qualify within the generally accepted medical definition of ischemic heart disease.  The examiner then concluded that heart disease did not pre-exist military service and was less likely than not related to service or service-connected disability.  In support of his opinion he provided the incomplete and confusing rationale that “there is no evidence that any diagnosed heart disease, to include ischemic heart disease, coronary artery disease and hypertension hence no evidence of a heart disease.”  
An addendum report was added to the record in March 2018, where the examiner stated that his previous opinion that heart disease was not related to service was unchanged, but noted the etiology for the Veteran’s coronary artery disease was likely due to multiple risk factors including his long smoking history, hyperlipidemia, age, and family history.  He also noted that ischemic heart disease was not present as the Veteran was treated medically for coronary artery disease and had no intervention such as bypass surgery or coronary artery stents.  His rationale that “there is no evidence that any diagnosed heart disease, to include ischemic heart disease, coronary artery disease and hypertension” remained the same.  
With regard to headaches, the VA examiner concluded that review of medical records showed no diagnosis of headaches or headache condition.  Unfortunately, he failed to reference, or even acknowledge, VA neurology records which document prior diagnoses of headaches in January 2013 and April 2015.  See February 2018 VA Headache Disability Benefits Questionnaire (DBQ).
Given the VA examiner’s failure to fully and accurately consider the evidence of record or to provide clear answers to the specific questions posed in the Board’s prior Remand, additional medical opinions are needed.  See Hayes v. Brown, 9 Vet. App. 67, 73 (1996); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).
The matters are REMANDED for the following action:
The claims file should be returned to the VA examiner who provided the opinions in February and March of 2018, if available, for an addendum opinion.  Otherwise, obtain a medical opinion from another VA examiner.  The need for an additional examination is left to the discretion of the medical professional offering the addendum opinion.
With regard to the heart condition:
The examiner should determine a) whether there is clear and unmistakable evidence (i.e., undebatable) that any diagnosed heart disease, to include ischemic heart disease (IHD), coronary artery disease (CAD), and hypertension (HTN), existed prior to service (considering the history reported at enlistment in 1972) and, if so; 
b) whether there is clear and unmistakable (undebatable) evidence that heart disease was not aggravated by service beyond its natural progression, including the chest pain complained of during service.
c) If not, the examiner should then determine whether it is it at least as likely as not (a probability of 50 percent or greater) that any diagnosed heart disease, to include IHD, CAD, and HTN, is etiologically related to the Veteran’s active service.  The examiner should carefully consider the objective medical findings in the service treatment records and consider if the Veteran’s documented episode of chest pain in March 1976 during service and complaints of chest pain/pressure at separation in April 1976 represent the earliest manifestation of the later diagnosed heart disease.  
d) If any diagnosed heart disease cannot be regarded as having had its onset during active service, the examiner should explicitly indicate so and provide an appropriate explanation.  Then in the alternative he/she should state whether it at least as likely as not (a probability of 50 percent or greater) that the diagnosed heart disease was caused or chronically worsened by his service-connected anxiety disorder or other service connected disability.  If no aggravation is found, the examiner should specifically indicate so and provide an appropriate explanation.
With regard to headaches:
The examiner should then determine a) whether there is clear and unmistakable evidence (i.e., undebatable) that a headache disorder existed prior to service (considering the head injury reported at enlistment) and, if so; 
b) whether there is clear and unmistakable (undebatable) evidence that the headache disorder was not aggravated by service beyond its natural progression, including the headaches complained of during service.
c) If not, the examiner should then determine whether it is it at least as likely as not (a probability of 50 percent or greater) that any diagnosed headache disorder is etiologically related to the Veteran’s active service.  The examiner should carefully consider the objective medical findings in the service treatment records and address the Veteran’s documented headaches in January 1974, October 1975 and July 1976 during service as the possible onset of, or precursor to, any current headache disorder.  
d) If any diagnosed headache disorder cannot be regarded as having had its onset during active service, the examiner should explicitly indicate so and provide an appropriate explanation.  Then in the alternative he/she should state whether it at least as likely as not (a probability of 50 percent or greater) that the diagnosed headache disorder was caused or chronically worsened by any service-connected disability.  If no aggravation is found, the examiner should specifically indicate so and provide an appropriate explanation.
In providing, this opinion, the examiner must consider the headache diagnoses already of record and offer an opinion even if a specific headache diagnosis has resolved (as the requirement for a current disability for VA purposes is met when the Veteran has a diagnosis such that he based his claim on the same, or had it during the pendency of the claim).  If any previously rendered diagnosis of headache disorder is later corrected to reflect a more accurate diagnosis, the examiner should state the same.
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The examiner must explain the underlying rationale for all opinions expressed, citing to supporting factual data/medical literature, as deemed indicated.  A comprehensive rationale must be provided for the opinions rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified.
 
THOMAS H. O'SHAY
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J.R. Bryant