Citation Nr: 18158540 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 09-44 544 DATE: December 18, 2018 ORDER Service connection for obstructive sleep apnea (OSA), claimed as secondary to service-connected hiatal hernia, chronic duodenal ulcer with gastroesophageal reflux disease (GERD), and bronchitis is denied. FINDINGS OF FACT 1. The Veteran has sleep apnea that was first diagnosed many years after service. 2. The Veteran’s sleep apnea is not shown to be etiologically related to any event, injury, or disease in service; nor is it shown to have been caused or aggravated by his service-connected hiatal hernia, chronic duodenal ulcer with GERD, and/or bronchitis. CONCLUSION OF LAW The criteria for an award of service connection for sleep apnea, to include as secondary to hiatal hernia, chronic duodenal ulcer with GERD, and/or bronchitis, have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Army from January 1955 to April 1978. This matter comes before the Board of Veterans Appeals (Board) on appeal from June 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In May 2013, the Veteran and his spouse testified at a hearing before a Decision Review Officer (DRO) at the RO. He also provided testimony at a Board video-conference hearing before a Veterans Law Judge in February 2016. Transcripts of both hearings have been associated with the record. In May 2016, The Board remanded the claim for service connection for sleep apnea for further development as an examiner had not addressed whether the Veteran’s sleep apnea was aggravated by the hiatal hernia, chronic duodenal ulcer with GERD, or bronchitis. In May 2017, the Veteran was notified that the Veterans Law Judge who had conducted the February 2016 hearing was no longer employed by the Board. As such, the Veteran was offered an opportunity to testify at a new Board hearing. However, in May 2017, he responded that he did not wish to appear at another Board hearing and requested that his case be considered on the evidence of record. In July 2017, the Board remanded for an addendum opinion as it found that the most recently obtained opinions regarding secondary service connection were inadequate. In October 2017, the Board remanded again, finding that the addendum opinion had not adequately responded to the Board’s request for further explanation with respect an entry in a September 2012 VA treatment note. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service or when evidence establishes a disease diagnosed after discharge was incurred in service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). Certain chronic disabilities, are presumed to have been incurred in service if (a) manifest to compensable degree within one year of discharge from service; (b) there is evidence of the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and present manifestations of the same chronic disease; or (c) when a chronic disease is not present during service, evidence of continuity of symptomatology. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The requirement of a current disability is satisfied when the claimant is shown to have the disability either at the time he files his claim for service connection, or during the pendency of that claim, even if the disability resolves prior to final adjudication. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). When the record contains a recent diagnosis of disability prior to the filing of a claim for benefits based on that disability, the report of diagnosis is relevant evidence that must be addressed in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (2016). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is 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 at 1376-77. The Board must assess the credibility and weight of evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may properly consider internal inconsistency of statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran’s demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). The standard of proof to be applied in decisions on claims for Veterans’ benefits is set forth at 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran seeks to establish service connection for sleep apnea. He maintains that sleep apnea was incurred in, or is otherwise related to, service; or, in the alternative, that it was caused, or has been aggravated by, a service-connected disability, to include hiatal hernia, chronic duodenal ulcer with GERD, and bronchitis. There is no dispute that the Veteran has sleep apnea. The record clearly reflects that the disorder was definitively diagnosed in May 2007 and the Veteran is receiving ongoing treatment. The real question here is whether there is a nexus, or link, between the Veteran’s sleep apnea and any event, injury, or disease in service, and if not, whether the evidence otherwise establishes that sleep apnea was caused, or has been aggravated by, a service-connected disability, to include hiatal hernia, chronic duodenal ulcer with gastroesophageal reflux disease, and/or bronchitis. As to those matters, the Board’s finds that the preponderance of the evidence is against the Veteran’s claim. The Veteran’s service treatment records do not contain any reference to complaints, treatment, or diagnoses related to sleep apnea. When the Veteran was examined for service separation (retirement) in February 1978, his nose, sinuses, mouth, throat, and lungs were all found to be normal. It was noted that he weighed 190 pounds. The Veteran was afforded a VA examination in June 2012. The examiner confirmed the Veteran’s sleep apnea diagnosis. The examiner noted that the Veteran was morbidly obese and that it was less likely than not that his OSA was proximately due to or the result of the Veteran’s service-connected conditions. The examiner provided the rationale that the current medical literature consensus is that there is no connection between sleep apnea and gastro esophageal reflux or hiatal hernia. There has been conflicting information, however the newest research found by this examiner states that a causal link between gastro esophageal reflux and obstructive sleep apnea may not exist. Sleep apnea is an anatomical condition. Obstructive sleep apnea occurs when the muscles in the back of the throat relax. Theses muscles support the soft plate the uvula, the tonsils and the tongue. When the muscles relax the airway narrows or closes as you breathe in, and breathing momentarily stops. See VA Examination, June 2012. Because the June 2012 examiner did not address whether the Veteran’s sleep apnea was aggravated by the Veteran’s hiatal hernia and chronic duodenal ulcer with GERD, the Board remanded the case for a new examination, which was performed in October 2016. The October 2016 examiner opined that there was no evidence that the Veteran was diagnosed or treated for sleep apnea while in service, thus it was less likely than not that the condition incurred in service. Moreover, hiatal hernias and duodenal ulcers involve the stomach and first section of the small intestine. These conditions do not cause sleep apnea. Bronchitis is a lower airway condition; sleep apnea is an upper airway condition; and bronchitis does not cause sleep apnea. Further, the examiner opined that the sleep apnea was not aggravated by service-connected disability. The examiner stated that “although there is speculation there may be a relationship between GERD and sleep apnea, in the medical literature reviewed, there was no nexus found that GERD permanently aggravates sleep apnea. Bronchitis is a lower airway condition and sleep apnea is an upper airway condition. In medical literature reviewed, no nexus [is] found for a permanent aggravation of sleep apnea by bronchitis.” See C & P Exam, October 2016. In its July 2017 remand, the Board found the October 2016 opinion inadequate because the examiner provided only general statements, not specific to the Veteran, regarding the relationship between his sleep apnea and his service-connected hiatal hernia, chronic duodenal ulcer with GERD, and bronchitis. The Board also noted that the examiner failed to consider the assessment in a September 2012 VA treatment record that indicated that the Veteran’s bronchitis “did not help” his OSA. Pursuant to the July 2017 Board Remand, an addendum opinion was obtained later that month. The examiner opined that it was less than 50 percent probable that the Veteran’s OSA was caused or aggravated by any of his service-connected disabilities. The examiner noted, in part, that OSA “is caused by a well understood intermittent, positional, anatomical constriction of the upper respiratory tract, which restricts air exchange causing apneic episodes. GI disorders such as are [service connected] in this case do not have the facility to alter the upper respiratory tract anatomy.” As to the September 2012 VA treatment note that stated, “The Veteran’s bronchitis did not help his obstructive sleep apnea but does not cause it,” the examiner found that it was less likely than not that the Veteran’s obstructive sleep apnea was due to or aggravated by his service-connected bronchitis. The examiner stated a rationale by reiterating the September 2012 statement in the Veteran’s treatment notes to the effect that his bronchitis does not help OSA, but that one does not cause the other. See C & P Exam, July 2017. In its October 2017 remand, the Board found the July 2017 opinion inadequate to the extent it was unresponsive to the Board’s prior request that the examiner address the September 2012 treatment note to the effect that the Veteran’s bronchitis did not help his obstructive sleep apnea, but did not cause it. Subsequently, an addendum opinion was obtained in December 2017. The examiner opined that it was “less likely than not” that the Veteran’s claimed conditions either caused or materially aggravated his OSA. The examiner stated that the Veteran “developed OSA 34 years after [release from active duty] in association with a remarkable weight gain to morbid obesity levels,” and that age and obesity leading to the anatomic abnormalities were the major etiologies of his OSA condition. As to the statement in the record that bronchitis does not help OSA, the examiner noted that it was patently obvious that bronchitis does not help OSA; only weight loss can improve it. The examiner also addressed the articles submitted by the Veteran, noting that an association does not make for nexus/causation. See C&P exam, December 2017. The Veteran contends that his sleep apnea is as secondary to his service connected conditions of hiatal hernia, chronic duodenal ulcer with GERD, and bronchitis. The Veteran submitted medical articles to support his claim. However, the medical articles submitted state only that the patients who suffer from sleep apnea suffer from GI Tract conditions; they do provide an etiological link. The Veteran’s wife has said that the Veteran has always snored. However, no testimony was provided regarding any sleep apnea in service. See Hearing testimony, May 2013. Based on the foregoing, the Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for sleep apnea. While the evidence of record shows that he has sleep apnea, the probative evidence of record demonstrates that such is not related to service or a service-connected disability. None of the examiners who have opined on the matter have concluded that the Veteran’s current sleep apnea had its onset in, or is otherwise related to, service. Moreover, the December 2017 examiner found it unlikely that OSA was caused or aggravated by the Veteran’s service-connected disabilities. That opinion was provided following review of the claims file and is supported by an adequate rationale for the conclusions reached. Thus, the Board finds that the opinion is entitled to significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). There are no probative opinions to the contrary. To the extent the Veteran believes that his current sleep apnea is related to service or a service-connected disability, as a lay person, the record does not reflect that he has the specialized training sufficient to render such an opinion. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The etiology of sleep apnea is a complex matter that requires medical expertise. The only evidence of record to competently address the matter weighs against his claim. In summary, the Board finds that sleep apnea is not shown to be causally or etiologically related to any disease, injury, or incident during service. Nor is it shown to have been caused or aggravated by service-connected hiatal hernia, chronic duodenal ulcer with GERD, and/or bronchitis. Consequently, service connection for such disorder is not warranted. As the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt doctrine is not   applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Iglesias, Law Clerk