Citation Nr: 18160110 Decision Date: 12/21/18 Archive Date: 12/21/18 DOCKET NO. 12-32 320 DATE: December 21, 2018 ORDER Service connection for sleep apnea is denied. Service connection for skin cancer is denied. FINDINGS OF FACT 1. The weight of the competent and probative evidence is against finding that sleep apnea had its onset in or is otherwise related to service, to include as proximately related to a service-connected disability. 2. The weight of the competent and probative evidence is against finding that skin cancer had its onset in or is otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1116, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for entitlement to service connection for skin cancer have not been met. 38 U.S.C. §§ 1110, 1116, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1965 to September 1967. These matters come before the Board of Veterans’ Appeals (Board) on appeal from June 2011 and April 2012 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2015, the Veteran testified before the undersigned at a Board hearing in Nashville, Tennessee. A transcript of that hearing has been associated with the virtual file and reviewed. This case was previously before the Board in September 2015 and September 2017, on which occasions it was remanded for further development. As the requested development has been completed, no further action to ensure compliance with the remand directives is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board acknowledges that the September 2015 Board decision remanded the claim of entitlement to service connection for duodenal ulcer, but notes that a September 2018 rating decision granted service connection for that disorder, which constituted a full grant of the benefit sought on appeal. Accordingly, the issue is no longer in appellate status and is thus not currently before the Board. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). As a general matter, establishing service connection requires competent evidence of (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Certain chronic diseases, including basal cell carcinoma (malignant tumor), will be considered incurred in service if manifest to a degree of ten percent within one year of service. 38 C.F.R. §§ 3.307, 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing service connection for the chronic diseases listed in Section 3.309(a) is through a demonstration of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was “noted” during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). The Veteran contends that sleep apnea and skin cancer are due to in-service herbicide agent exposure. In this regard, if a veteran was exposed to an herbicide agent during active service, the diseases set forth in 38 C.F.R. § 3.309(e) will be presumed to be related to such service if they become manifest to a degree of 10 percent or more at any time after service, with an exception not applicable to this case. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(ii). The Veteran’s military personnel records demonstrate that he served in Vietnam from 1966 to 1967. 07/02/2014, Certificate of Release; 07/02/2014, STR-Medical. Accordingly, the Veteran is presumed to have been exposed to herbicide agents during service. 38 C.F.R. § 3.307(a)(6)(iii). As sleep apnea and skin cancer are not among the diseases set forth under 38 C.F.R. § 3.309(e), a presumption based on in-service herbicide agent exposure is not warranted. However, the Board will consider whether there is evidence of actual direct causation of sleep apnea and/or skin cancer due to herbicide agent exposure. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Alternatively, service connection may be granted on a secondary basis for a disability that is proximately due to or the result of (caused) or worsened beyond its natural progression (aggravated) by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439, 448-49 (1995) (en banc); 38 C.F.R. § 3.310. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). 1. Entitlement to service connection for sleep apnea. After review of the record, the Board finds that the criteria for service connection for sleep apnea have not been met. The record contains a competent diagnosis of obstructive sleep apnea (OSA). 01/21/2011, Medical-Government. Accordingly, the Board finds competent evidence of a current disorder. The Veteran’s service treatment records do not contain complaints of, treatment for, or a diagnosis of sleep apnea or related symptoms. He quit smoking in 2003 after smoking two packs per day for 40 years, denied experiencing sleep disturbances in October 2003 and February 2004, and was noted to be clinically obese in October 2003. 12/20/2011, CAPRI. In April 2009, the Veteran reported experiencing nightmares causing him to wake every 2 to 2.5 hours at night and resulting in daytime fatigue. 11/23/2011, STR-Medical. The Board notes that nightmares and sleep disturbances have been attributed to the Veteran’s service-connected posttraumatic stress disorder (PTSD), and are compensated as part of the rating for that disability. 12/06/2011, VA Examination; 03/16/2016, C&P Exam. In July 2010, the Veteran reported frequent awakening and excessive daytime somnolence for years, with witnessed sleep apnea for the past two years. The Veteran underwent a sleep study in September 2010, and was diagnosed with severe obstructive sleep apnea in November 2010. 01/21/2011, Medical-Government. In September 2018, a VA examiner opined that it is less likely than not that OSA is related to the Veteran’s period of active service. Initially, the examiner noted that OSA was diagnosed in 2010, more than 40 years after service. The examiner explained that extreme obesity is the most likely risk factor for OSA in the instant case. An April 2016 VA examination indicated a body-mass index (BMI) of 58, which qualifies as severely obese. In support, the September 2018 examiner cited to multiple studies demonstrating that the likelihood of developing OSA markedly increases as BMI increases, and that OSA is present in the majority of obese individuals. The examiner explained that the Veteran’s report of sleeping problems after service is not sufficient to establish evidence of OSA, as there are multiple etiologies for sleep problems, while OSA is a specific sleep-related breathing disorder. There are other possible etiologies for sleep problems, including mental health conditions. Records from 1970 refer to “anxiety reaction, chronic” and “psychiatric consultation because of his recurrent problem with anxiety and alcohol abuse.” The examiner also stated that there is currently no consistent medical literature to support a link between herbicide agent exposure and OSA. The VA examiner also opined that it is less likely than not that OSA was caused or has been aggravated by a service-connected disability. The examiner acknowledged that although sleep disorders can be highly prevalent in PTSD and that sleep apnea is associated with a higher prevalence of psychiatric comorbid conditions, prevalence does NOT signify causative etiology and there is not sufficient evidence that PTSD causes OSA. One study concluded that persons with PTSD had no objective evidence for increased incidence of clinically relevant sleep disturbances such as sleep apnea. Another study demonstrated that OSA may contribute to aggravation of diabetes, but that subjects with OSA were no more likely to develop diabetes mellitus than subjects without OSA. The examiner concluded that the Veteran’s OSA is more likely than not due to obesity, and that it is less likely than not that OSA was caused or has been aggravated by his service-connected disabilities, to include PTSD and diabetes. 09/18/2019, C&P Exam. The Board finds the September 2018 VA examiner’s opinion to be competent, credible, and highly probative, as it is supported by a sufficient rationale, including proper consideration of lay evidence, medical expertise, and application of the medical literature to the facts. In light of the foregoing, the Board finds that the weight of the competent and probative evidence is against finding that OSA had its onset during or is otherwise related to service, to include due to presumed in-service herbicide agent exposure. The Board also finds that the weight of the competent and probative evidence is against finding that OSA was caused or has been aggravated by a service-connected disability. See 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. 2. Entitlement to service connection for skin cancer. After review of the record, the Board finds that the criteria for service connection for skin cancer have not been met. The record contains a competent diagnosis of basal cell carcinoma (BCC). 06/10/2011, Medical-Government. Accordingly, the Board finds competent evidence of a current disorder. The Veteran’s service treatment records do not contain complaints of, treatment for, or a diagnosis of skin cancer or related symptoms. Treatment notes in August 2010 and October 2010 indicate no unusual skin lesions. A December 2010 treatment note indicates a lesion at the medial canthus, suspect BCC. The Veteran underwent a biopsy in January 2011, and in February 2011 was diagnosed with BCC of the right cheek. The carcinoma was excised in March 2011. 01/21/2011, Medical-Government; 06/10/2011, Medical-Government. A January 2011 pathology report included a clinical history, which noted left medial canthus lesion for 20 years. 06/20/2017, CAPRI. In September 2018, a VA examiner opined that it is less likely than not that skin cancer is related to the Veteran’s period of active service, noting that service treatment records are silent for skin cancer or precancerous skin lesions. BCC and acrochordon were diagnosed in 2011, more than 40 years after discharge. Regarding the reference to a lesion for 20 years, this would still be more than 20 years after discharge. Additionally, the examiner stated that there is not consistent medical evidence in the literature to support a link between BCC or acrochordon and herbicide agent exposure. The Board finds the September 2018 VA examiner’s opinion to be competent, credible, and highly probative, as it is supported by a sufficient rationale, including proper consideration and application of the relevant medical and lay evidence. In light of the foregoing, the Board finds that the weight of the competent and probative evidence is against finding that skin cancer had its onset during or manifested within one year of service, or that it was noted in service with evidence of symptoms on a continuous basis since. See 38 C.F.R. §§ 3.303, 3.307, 3.309. (Continued on the next page)   In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Gelber, Associate Counsel