Citation Nr: 18157621 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 16-40 969A DATE: December 13, 2018 ORDER Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected disabilities, is denied. FINDINGS OF FACT 1. The Veteran was diagnosed with obstructive sleep apnea in August 2000. 2. The weight of the evidence is against a finding linking the Veteran’s obstructive sleep apnea to military service or to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for obstructive sleep apnea (OSA) have not been met. 38 U.S.C. § 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Air Force from August 1989 to September 1993 and received an honorable discharge. The Veteran reported that he began snoring in 1992 because of allergies he was experiencing at that time. He also indicated that he began to gain weight, which eventually lead to him not being reenlisted. A review of the service treatment records and service personnel records confirms in-service treatment and counseling for respiratory issues due to allergies and weight gain, but no diagnosis of obstructive sleep apnea. A review of the Veteran’s private treatment records shows he underwent an overnight sleep study at Northwest Medical Center in August 2000, which revealed significant obstructive sleep-disordered breathing. Based on these results, the Veteran was prescribed a CPAP machine. Subsequent VA and private treatment records show the Veteran remains on CPAP therapy for treatment of obstructive sleep apnea. Service connection for obstructive sleep apnea. Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be (1) a competent diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Regarding element (1), the Veteran’s VA and private treatment records show that he has a current diagnosis of obstructive sleep apnea with need for CPAP treatment at night. Therefore, the requirements of element (1) have been satisfied. Regarding element (2), in-service incurrence, although the Veteran’s private and VA treatment records show a diagnosis of sleep apnea, there is no evidence that he was diagnosed with obstructive sleep apnea while in the military. The Veteran attributed the lack of a diagnosis of obstructive sleep apnea to the military “not diagnosing sleep apnea before 1996 at the earliest,” and a lack of availability of sleep apnea treatment at his base or the surrounding areas. However, service treatment records not only lack a diagnosis of obstructive sleep apnea, they also do not contain complaints of, or treatment for any associated symptoms of obstructive sleep apnea. Moreover, while in service, the Veteran sought medical treatment for other issues which suggests that he was willing to seek medical treatment when needed. This also suggests that sleep apnea was not present at that time. See AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013) (recognizing the widely-held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). As such, the requirements of element (2) have not been satisfied on a direct basis. Even assuming an in-service event or injury, regarding element (3), causal relationship, there is no evidence that a medical professional has linked the Veteran’s obstructive sleep apnea to an injury or disease incurred in service or a service-connected disability. On the contrary, in June 2016, a VA examiner, M.B., confirmed the Veteran was diagnosed with obstructive sleep apnea in 2000 and currently requires the use of a CPAP machine. However, the VA examiner, M.B., opined that the Veteran’s sleep apnea was less likely than not incurred in or caused by the claimed in-service injury, events, or illness. Rather, the examiner attributed it to another cause, aging, gender, and post-service weight gain after leaving the military. Service connection for obstructive sleep apnea as secondary to other service-connected disabilities or the treatment for other service-connected disabilities. While the requirements for direct service connection have not been met, service connection may also be granted on a secondary basis when the claimed disability is proximately due to, aggravated by, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2017). The Veteran has contended that his obstructive sleep apnea is secondarily service connected to his asthma and sinusitis. Here, during his time in service, the Veteran was diagnosed with conditions including asthma/allergies and sinusitis, which were later found to be service connected in April 2009. However, VA examiner M.B. provided the medical opinion that sleep apnea was less likely than not proximately due to or the result of the Veteran’s service-connected asthma and/or sinusitis. In support of this opinion, she noted that the Veteran did not have severe, difficult-to-control asthma. Rather, his asthma was well maintained on an Albuterol inhaler, without the need for oral corticosteroid treatment for many years. The VA examiner further noted the medical literature did not support the allegation that sleep apnea was caused by the Veteran’s asthma. VA examiner M.B. indicated the presence of nasal allergies/congestion could increase the risk of sleep apnea, but any aggravation of obstructive sleep apnea that would have occurred was statistically much more likely to be due to additional weight gain and aging and less likely as not to have come from the Veteran’s asthma or sinusitis condition. She further indicated the increased risk to the development of sleep apnea contributed by allergies or sinuses was “insignificant” compared to the contribution from obesity. She characterized the difference in risk as “huge.” Finally, she concluded that the sleep apnea was at least as likely as not permanently aggravated or a result of aging, male gender, and weight gain after leaving service. The Veteran submitted a May 2012 lay statement from his wife, C.H., in support of his claim. C.H. reported the Veteran began experiencing seasonal allergy symptoms in approximately 1989. She also reported that in June 1992, she first noticed the Veteran snoring at night. She reported the snoring quickly worsened, affecting their sleeping habits and the Veteran’s abilities to “think and speak clearly.” She reported the snoring kept her up for long stretches at night, “almost from the beginning.” At that point, she also began to notice he was gaining weight, eventually gaining an average of 10 pounds per year until he was diagnosed with sleep apnea. The Veteran also submitted a May 2012 lay statement from his mother-in-law, H.M., stating that he began experiencing times of heavy hay fever and breathing issues during his time in the military between 1989 and 1993. In addition, she reported the Veteran began snoring during that time frame, describing multiple instances of the Veteran snoring loudly enough to wake everyone in the house. However, these statements are not sufficient to establish a link or nexus between the Veteran’s current obstructive sleep apnea diagnosis and his earlier military service. Indeed, VA examiner M.B. specifically noted that while the Veteran’s family members reported that the Veteran snored during his time of military service, “snoring is an extremely common condition and it is not equivalent to sleep apnea.” Although the Veteran supplied his spouse's resume, it does not show any relevant credentials that would establish her expertise in diagnosing a medical condition or identifying a link between a medical condition and military service. As such, the statements from the Veteran’s family members regarding the nexus of the Veteran’s obstructive sleep apnea are afforded only some weight. Instead, greater weight has been afforded to the opinion of VA examiner M.B. due to her medical expertise, review of the medical records in the file, and the detailed rationale provided in support of her medical opinion. In addition, the Veteran cited to other BVA decisions in cases where service connection was granted for sleep apnea that was diagnosed after leaving military service. These BVA cases are not precedential and the facts of the cases are not identical to the facts of the Veteran’s case. Significant distinguishing factors include the Veteran’s medical history, the time between his military service and the diagnosis of obstructive sleep apnea, and the lack of favorable medical opinion evidence. Therefore, the Board finds these citations do not by themselves establish service connection for the Veteran’s obstructive sleep apnea, but they have been considered them along with the rest of the evidence in this case. The Veteran also argued that his obstructive sleep apnea was caused by exposure to contaminated water at Castle Air Force Base. The Veteran provided articles showing Castle Air Force Base was identified as an EPA Superfund site for buried pesticides and other chemicals that seeped into the underlying water table and affected water supplies to both on base and in off base housing where his family lived while stationed there. The Veteran contended that his symptoms of low testosterone and low sperm count “point to this phenomenon.” However, the VA has not identified this Air Force Base as a location for which contaminated waters would show presumptive health conditions. Further, there are no medical treatment records or medical opinions linking the Veteran’s obstructive sleep apnea to contaminated water. Similarly, there is no medical opinion evidence linking the Veteran’s obstructive sleep apnea to low testosterone or low sperm count. As such, the Board finds this argument unpersuasive. In sum, given the totality of the evidence, the claim for service connection must be denied. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. 38 U.S.C. § 5107(b) (West 2014); see also Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). M. Tenner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Vassallo